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1993 DIGILAW 417 (PAT)

Sidheshwar Prasad v. State Of Bihar

1993-09-20

G.C.BHARUKA, S.B.SINHA

body1993
Judgment G. C. Bharuka, J. 1. -this writ application has been filed by the petitioner for quashing the order of the Director, Secretary Education (Respondent No.2) as communicated to the petitioner under Memo no 1445 dated 9th July, 1992 (Annexure 1) by which he has been transferred from High School, Ghoshi, Jehanabad to Keshav High School, Barun in the district of Aurangabad. 2. The High School, Ghoshi, situated in the district of Jehanabad (the school hereinafter) had been nationalised under the provisions of section 34 of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1980. The provisions of the said ordinance were incorporated in the Bihar Act No, 33 of 1982. The petitioner being an Assistant Teacher in the school his services were also taken over by the Government. Aceording to the petitioner at present he is working as an acting Headmaster of the school. 3. Mr. Rajendra Prasad Singh, learned counsel appearing on behalf of the petitioner, has challenged the impugned order of transfer as contained in Annexure 1 to the writ application on the ground that in view of Rule 12 of the Bihar Nationalised Secondary Schools (Conditions of Service) Rules, 1983 (hereinafter referred to as the rules) framed under the provisions of the Act the respondent Director has no authority to affect the transfer of assistant Teachers and as such, the impugned order is fit to be quashed being ultra vires. 4. On the other hand, learned Advocate-General appearing for the respondents has submitted that the State Government being the employer of the petitioner, has inherent right to transfer the petitioner to any appropriate post keeping in view the administrative exigency and other relevant considerations. According to him, the transfer of a Government servant being an incidence of his service, it cannot be resisted on the ground of authority on the part of the employer. In support of his submission he placed reliance on Sec.4 (2) and Sec.5 of the Act His further submission was that under Rule 6 (3), the cadre of Headmasters is a state cadre and the Director is their controlling Authority and as such, the director has the power to affect the transfer of Headmasters to different districts of the State. In support of his submission he placed reliance on Sec.4 (2) and Sec.5 of the Act His further submission was that under Rule 6 (3), the cadre of Headmasters is a state cadre and the Director is their controlling Authority and as such, the director has the power to affect the transfer of Headmasters to different districts of the State. In support of his submission he has placed reliance on a judgment of this court in the case of Ramchandra Prasad V/s. The State of Bihar, CWJC No.456 of 1984, disposed of on 19-3-1985. 5. Section 3 (1) (b) of the Act has amended by an Ordinance No.11 of 1985 which has been repromulgated from time to time and Sec.5 (1)therefore may be quoted hereunder : "section 3 (1) (b) The services of every Headmaster, teacher or other employees of the school taken over by the State Government shall be deemed to have been transferred to the State government with effect from the date of taking over of the school and he shall become employee of the State Government with such designation as the State Government may determine. Sec.5-The management and control of the nationalised schools shall be under the Director and his subordinate officers in the manner as prescribed by the State Government. The State government shall determine the power and. functions of director and his subordinate officers of each category and shall have powers to give proper direction to the Director from time to time. " 6. Section 2 (k) defines "prescribed" means prescribed by the Act or the Rules framed therein and under Sec.2 (1) "rules" means rules framed under Sec.15 of the Act. Sec.15 of the Act empowers the state Government to make Rules for carrying out the purpose of the Act. It is under these powers that the Rules referred to above have been framed. Rule 12 relates to transfer of Headmasters. Assistant Teachers and non-teaching employees. The said Rule as originally framed read as under : But subsequently by a notification dated 28th April, 1988 of the State government made certain amendments in the Rules. On incorporation of the said amendment, the relevant sub-rule of Rule 12 read as under : 7. Rule 12 relates to transfer of Headmasters. Assistant Teachers and non-teaching employees. The said Rule as originally framed read as under : But subsequently by a notification dated 28th April, 1988 of the State government made certain amendments in the Rules. On incorporation of the said amendment, the relevant sub-rule of Rule 12 read as under : 7. From the above referred statutory provisions it is clear that no doubt the Headmasters and Assistant Teachers are Government servant but the Director under Sec.5 of the Act can exercise only such powers of management and control of nationalised schools as may be prescribed by the State Government and the State Government has been authorised to determine the powers and functions the Director and his subordinate officers. It is also important to notice here that the "director" as defined under Sec.2 (j) of the Act is the creature of the statute and he cannot claim any power or jurisdiction beyond what has been specifically entrusted to him under the provisions of the Act and the Rules framed thereunder. 8. No doubt under Rule 6 of the Rules the Director is the Control-ling Jautbority for the Headmasters and the Regional Director is the controlling Authority for selection and subordinate teachers, but, in my opinion, in view of the amended Rules, it is of no avail to the respondents. The reason is that now under the statutory Rules it has been laid down in unambiguous term that the transfer of Assistant Teachers of all grades can be made by the Additional Director of Education on the recommendations of the Establishment Committee constituted at divisional level, the constitution whereof has been set out is the Rules itself. 9. In the present case admittedly the impugned order of transfer has been issued by the respondent Director on the basis of a decision taken by the State Level Establishment committee. As stated above, it is clear from the Rules that neither the state level Establishment committee nor the director has any authority to take any decision or pass any order in respect of the transfers of Assistant teachers. The petitioner is admittedly working as an Assistant teacher. Therefore on the face of it the impugned order has been passed without any authority of law and as such, it is unsustainable. The petitioner is admittedly working as an Assistant teacher. Therefore on the face of it the impugned order has been passed without any authority of law and as such, it is unsustainable. So far as the decision of this court in the case of Ramchandra Prasad (supra) relied upon by the learned Advocate-General is concerned, it was rendered keeping in view the un-amended provisions of Rule 12. Since an order of transfer in that case was passed by an order dated 25-1-1984, therefore, that decision is of no consequence in the facts of the present case. Further in my opinion, it is also not necessary in this case to express any opinion in respect of the submission advanced by learned Advocate-General that as an employer, the State Government has an inherent right to transfer its employees from one place to another irrespective of the provisions made in this regard in the Rules because, admittedly in this case, the impugned order of transfer has not been passed by the State Government. This question can be investigated and answered in an appropriate case as and when such a power is exercised by the State Government and is impugned by the effected person. 10. The learned Advocate-General has placed reliance on various circulars issued by the State Government to substantiate his submissions but it is well settled that the circulars and executive instructions cannot over-ride the statutory provisions. 11. Keeping in view the discussions made above, the impugned order of transfer as contained in Annexure 1 is quashed with cost assessed at rs.500.00. 12. It will be open for the competent authorities to pass appropriate order of transfer in accordance with law. Petition allowed.