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1998 DIGILAW 212 (PAT)

Nayan Rai v. State of Bihar

1998-03-10

ASOK KUMAR GANGULY

body1998
JUDGMENT A.K. GANGULY, J.:- Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner impugning the order dated 28.6.1995 by which the Respondent no.3 has been transferred as a Headmistress to a Project Girls High School, Baniyapur, Saran, from Project Girls High School, Persona, Saran. The said order has been passed by the Respondent no.2, Director, Secondary Education, and the said order is at Annexure1. Respondent no.3, who has been transferred by the said order, has not challenged the same. Apart from that even though Respondent No.3 has been made a party to this writ petition, she has not appeared to contest this proceeding. 3. It is not in dispute that the petitioner is not the Headmistress of the school but she is continuing as an acting Headmistress of the school and the petitioner has challenged the transfer order issued in favour of Respondent no.3, inter alia, on the ground that the said transfer order is without jurisdiction and if the transfer order is implemented that will deprive the petitioner of the privilege of continuing as acting Headmistress of the school even though she is not the Headmistress of the school. 4. Learned counsel appearing in support of the writ petition has urged that no rule has been framed in respect of project school about transfer of teachers. There is no Government circular in respect of such transfer either and in the absence of such rule or circular, Respondent no.2, namely, Director, Secondary Education, cannot pass any such transfer order. 5. In support of such contention learned counsel for the petitioner relied on two judgments. One of which is reported and the other is unreported. The unreported judgment is dated 22.10.97 passed in C.W.J.C. No. 6797 of 1997. Learned counsel for the petitioner submitted that in the said judgment the stand which was taken by the Government pleader was that until a rule is framed relating to transfer of teachers of Project school, transfer can be made only on the request of the concerned teachers for accommodating them, according to their convenience, without affecting any other teacher. Learned counsel for the petitioner submitted that in the said judgment the stand which was taken by the Government pleader was that until a rule is framed relating to transfer of teachers of Project school, transfer can be made only on the request of the concerned teachers for accommodating them, according to their convenience, without affecting any other teacher. Learned counsel also placed reliance on para-6 of the said judgment where the learned Judge expressed his opinion that notification No. 398 dated 9.6.1983 does not deal with any other service condition or Headmaster or Headmistress and teachers working in Project school except the matter relating to the appointment of Headmaster. 6. Learned counsel for the petitioner has also placed reliance on a Division Bench judgment of this Court in the case of Kumud Kumari Srivastava and ors. Vs. The State of Bihar & ors. reported in 1995(2) PLJR 215 and learned counsel submitted that in the said judgment all the relevant circulars which have been cited by the learned counsel for the respondents were considered and after considering all these, the learned Judges of the Division Bench came to a finding which is at para-19, page 222 of the judgment. The finding is to the effect that "provisions made for the nationalised schools can per se have no application in the case of Project schools." 7. Therefore, relying on the aforesaid observation of the Division Bench, learned counsel urged that there is no specific rules framed for the Project school. Rules relating to nationalised school cannot have any application in respect of Project school. 8. Learned counsel appearing for the State has contested these submissions by referring to various circulars. Prior to that, learned counsel for the respondents has contended, and in view rightly, that this writ petition impugning the transfer order passed in respect of Respondent no.3 cannot be filed by the petitioner. 9. This Court is of the view that against an order of transfer only the aggrieved person may have a grievance. In the instant case, transfer order has been passed by Respondent no.2 in respect of Respondent no.3. Respondent no.3 has not challenged the said order. In this context, the challenge made by the petitioner in respect of the transfer order relating to Respondent no.3 is rather misconceived. 10. In the instant case, transfer order has been passed by Respondent no.2 in respect of Respondent no.3. Respondent no.3 has not challenged the said order. In this context, the challenge made by the petitioner in respect of the transfer order relating to Respondent no.3 is rather misconceived. 10. This is certainly not a public interest litigation and no public interest can be said to have been affected by such transfer. An order of transfer is normally passed in public interest at the instance of the Executive authority and the Court's jurisdiction to interfere with such transfer order is extremely limited. In that context, the attempt of the petitioner to stall the transfer order of Respondent no.3 is otherwise misconceived and on this ground alone this writ petition is liable to be dismissed. 11. Apart from the aforesaid question, the petitioner has raised various questions relating to jurisdiction of the Director of Secondary Education and since this Court has heard those submissions, it is expressing its view in this respect. 12. Learned counsel for the State apart from taking the aforesaid objection, relied on two circulars of the Government. One of which is Circular No. 705 dated 12.8.1982 and the other is the Circular No. 131 dated 20.2.1985. Clauses 1 and 20 of circular No.705 make it clear that in respect of other schools under the State provisions relating to nationalised schools will be appliede and circular no. 131 makes it clear that notification no. 398 dated 9.6.1983 will be applied in case of all schools under the State xcepting minority institutions. In fact notification no. 398 dated 9.6.1983 is a statutory one under the 1981 Act. From clause 6 of the said notification it appears that in respect of the cadre of the Headmaster, the Controlling Officer is the Director and vide clause 12 of the said notification it is stated that in respect of Headmaster, Assistant teacher and non-teaching employees, the power of transfer is vested upon the Controlling Officer or any other officer authorised by the State Government. 13. On a combined reading of clauses 6 and 12 of the said notification, which is made applicable in the case of Project school, there can be no doubt that in respect of Headmaster/Headmistress the Director is the Controlling Officer and therefore, he has the power to transfer. 14. 13. On a combined reading of clauses 6 and 12 of the said notification, which is made applicable in the case of Project school, there can be no doubt that in respect of Headmaster/Headmistress the Director is the Controlling Officer and therefore, he has the power to transfer. 14. Learned counsel for the petitioner in reply submitted that the said clause 12 had been further amended and as a result of which the Director can transfer only on the recommendation of the Establishment Committee and in the instant case there is no recommendation of the Establishment Committee and as such the order of transfer is illegal. 15. This Court is of the opinion that by advancing this submission that under the amended clause 12 of the said notification the Director can issue transfer order of the Headmaster of the Project school only on the recommendation of the Establishment Committee, the larned counsel for the petitioner has actually admitted that in matters of transfer of Headmaster of Project schools the Directors has the jurisdiction. But according to him such jurisdiction can be exercised only on the recommendation of the Establishment Committee. 16. I am of the opinion that such recommendation is not mandatory and is merely directory and in absence of such recommendation the transfer order does not become invalid. This Court finds that this view as has been accepted by the Division Bench of this Court in its order dated 5.1.1998 passed in L.P.A. no. 1109 of 1997. 17. Apart from that in the judgment of the Division Bench in the case of Kumud Kumari Srivastava & ors. Vs. The State of Bihar and ors. (supra) the point which is argued here did not fall for consideration. The question whether Director, Secondary Education, has the power to transfer the Headmistress of a Project school was certainly not an issue in Kumud Kumari. Learned Judges of the Division Bench did not conclude that the statutory notifications relating to nationalised school will never be applied to the Project school. The Latin expression 'per se' means 'by itself'. But where the statutory notification 398 was made applicable to the Project schools, in that case the observation of the Division Bench in Kumud Kumari (supra) has to be understood in that context. The Latin expression 'per se' means 'by itself'. But where the statutory notification 398 was made applicable to the Project schools, in that case the observation of the Division Bench in Kumud Kumari (supra) has to be understood in that context. It has also to borne in mind that in Kumud Kumari the Division Bench was not even remotely concerned with the questions which are argued in this case. 18. But on this point the unreported judgment of another Division Bench dated 30.7.1991 passed in C.W.J.C. No. 1160 of 1991 has some relevance. In that case learned Judges of the Division Bench came to the conclusion that in matters of transfer and posting of the staff of the Project schools, such schools should be treated as taken over (nationalised) schools and it would thus follow that the State and its prescribed authority are fully competent to pass appropriate orders in regard to the management and control of the affairs of such Project school. 19. In view of this clear finding in the judgment of the Division Bench referred to above there is no substance in the argument advanced on behalf of the learned counsel for the petitioner that the Director, Secondary Education, cannot pass an order of transfer in respect of the Headmistress of the Project school. 20. Therefore, all these points raised by the learned counsel for the petitioner are overruled and this writ petition is dismissed. The interim order is vacated. 21. No costs.