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2000 DIGILAW 585 (PAT)

Jai Kishore Prasad v. State Of Bihar

2000-04-17

SUDHANSU JYOTI MUKHOPADHAYA

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Judgment 1. Heard the counsel for the petitioner and the State. Also perused the affidavits filed by the parties. 2. The petitioner has been transferred, vide Memo No. 2432 dated 31st December, 1999 from Netaji Subhash High School, Islampur, Nalanda to High School, Kurmichak, Mokamah, Patna on the ground that he is excess to the strength. The petitioner has challenged the same on the ground that he is within the strength of teachers and not excess. 3. On 30th March, 2000, this Court asked the Respondents to file affidavits showing the strength of the school, subject-wise, as also the names of teachers working against such posts with their date of posting. 4. A counter affidavit has been filed on behalf of the Respondents, wherein such details have been shown and marked as Annexure-A to the said counter affidavit. 5. From the counter affidavit, it appears that the petitioner is a Science (Mathematics) teacher, for which one post has been sanctioned. However, three Science Teachers, namely, Jai Kishore Prasad (petitioner); Bashista Muni Pradhan and another Satish Chandra Srivastava have been posted in the said school. Thus, there is admittedly excess Science Teachers in the school according to the total sanctioned strength of Science Teachers. 6. However, from the said enclosure (Annexure-A), it appears that the petitioner was posted in the school on 5th August, 1995, whereas two other teachers, namely, Bashista Muni Pradhan and Satish Chandra Srivastava were posted subsequently on 16th August, 1996 and 16th January, 1996 respectively. 7. If that be the position, the petitioner cannot be stated to be excess to the strength to those posted later on. This matter has not been dealt with by the authorities while they passed the impugned order on 31st December, 1999. 8. In the facts and circumstances, I feel that the matter should be reconsidered by the Respondents. 9. The petitioner will file a representation before the Secretary, Secondary, Primary & Adult Education within three weeks. On such representation, the Secretary will find out as to whether the petitioner is excess to the strength or not. If any person posted as Science (Mathematics) Teacher prior to the petitioner in the school, the petitioner should be declared surplus and in that case, the petitioner is to join the post in terms with order dated 31st December, 1999. 10. If any person posted as Science (Mathematics) Teacher prior to the petitioner in the school, the petitioner should be declared surplus and in that case, the petitioner is to join the post in terms with order dated 31st December, 1999. 10. On the other hand, if no person is found to have been posted prior to petitioner, but have been posted after the petitioner as Science Teacher in the said school, the petitioner should be declared to be within the strength and be alleger to continue in the school (Netaji Subhash High School, Islampur, Nalanda). Those who have been posted after petitioner as Science Teacher, they should be transferred to other schools. 11. A decision, in this respect, be taken and communicated to petitioner within one month from the date of receipt/production of a copy of this order. 12. Till such decision is taken, the impugned order dated 31st December, 1999 be not given effect. However, this interim order will stand vacated if no representation is filed by the petitioner within three weeks. 13. The writ petition stands disposed of with the aforesaid observations and directions.