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2001 DIGILAW 90 (PAT)

Quazi Abdul Waris v. State Of Bihar

2001-02-05

AFTAB ALAM

body2001
Judgment 1. Heard Mr. Pushkar Narain Shahi, learned counsel appearing for the petitioner. Also heard Mr. A. K. Choudhary, G.R VIII appearing for the State. 2. Mr. Abhay Singh, learned Senior counsel appearing for the Chairman, Bihar State Madrasa Education Board (Madrasa Board for short) sought to make some submissions which will be taken note of at an appropriate place in this order. 3. The petitioner seeks to challenge the notification dated 30.12.2000 issued by the Secretary, Department of Secondary Education, Government of Bihar In so far as it transfers the petitioner from his present position as Secretary, Madrasa Board, Patna to the post of Lecturer in the Institute of Post Graduate Studies and Research in Arabic and Persian Learning, Patna (hereinafter referred to as the Institute). Following the petitioners transfer from the Madrasa Board, a certain Abdul Ahad Khan (respondent No.5) is brought to that position from his posting as District Education Officer, Nalanda. 4. The following facts may be stated for examining the petitioners challenge to his transfer in its proper perspective. The petitioner was appointed in the institute on the post of Lecturer in English which is a Class-ll Post in the Bihar Education Service. While he was working in the Institute, a vacancy arose in the post of director and the petitioner was appointed to lhat Post on an officiating basis. The petitioners officiating appointment to the Post of Director was challenged by another person working in the Institute in C.W.J.C. No. 1825 of 1994. The challenge succeeded and that writ petition was allowed by judgment and order dated 23.03.1995 (Copy at Annexure-3). In that order, this Court found and held that the petitioner in that case was senior to the present petitioner and further that only a scholar in Arabic or Persian could be pointed as the Director of the Institute and the petitioner having been appointed as Lecturer in English was not eligible for the Post. 5. While the petitioner was still working in the Institute the Post of Director fell vacant for a second time. This time a per- son working as Lecturer in Arabic was picked up to fill the Post. 5. While the petitioner was still working in the Institute the Post of Director fell vacant for a second time. This time a per- son working as Lecturer in Arabic was picked up to fill the Post. The petitioner challenged the appointment of that person on the ground that he was far junior to the petitioner (about 10 years) and further that the relevant rules, on their proper construction, did not exclude a Lecturer in English from being appointed on the Post of Director in the Institute. This writ peti- tion, being C.W.J.C. No. 2703 of 1998 has been admitted for hearing and remains pending before this Court. It is to be noted that though this writ petition was admitted, no interim order was passed in the petitioners favour with the result that another person, whom the petitioner considers far junior to himself, holds the Post of Director in the Institute which, according to the petitioner, causes embarassment and humiliation to him. 6. It was in those circumstances that the petitioner was brought on deputation to the Post of Secretary in the Madrasa Board in December, 1998 and he is now being sent back to the Institute. 7. When this case was taken up earlier on 11.01.2001 this Court, on hearing the submissions made on behalf of the petitioner, passed the following order: "The petitioner had left that Institute and had come on deputation to the Madrasa Education Board in the background of a litigation with another person who has been authorised to work as Director and whom the petitioner considers to be much junior to him. The litigation on that issue still remains pending before this Court. In those circumstances, the petitioner is apquite unwilling to go back to the Institute and makes a plea that instead of the Institute the petitioner might be sent "on any other post at any place in the State of Bihar commensurate with the status and seniority of the petitioner." In the background of this case, the limited prayer made by the petitioner does not seem to be very unreasonable and the authorities might perhaps wish to adjust him elsewhere. Mr. Ashok Kumar Choudhary, G.P.VIII wanted some time to seek instructions on this aspect of the matter." In the light of the aforesaid order, Mr. Choudhary sought instructions and has filed a counter-affidavit today. Mr. Ashok Kumar Choudhary, G.P.VIII wanted some time to seek instructions on this aspect of the matter." In the light of the aforesaid order, Mr. Choudhary sought instructions and has filed a counter-affidavit today. In the counter-affidavit, it is stated that due to administrative exigencies resulting from a number of circumstances, it had become unavoidable to send the petitioner to the Institute and at the present juncture, this cannot be helped. Amongst others, it is stated that there was a great paucity of English teachers in the Institute which was causing unrest among the students and, therefore, it had become necessary to send back the petitioner, who holds the Post of Lecturer in English there. Mr. Ashok Kumar Choudhary, however, gave the assurance to the Court that once the petitioner joins at the Institute, the authorities will consider his request sympathetically and expeditiously and as soon as it was administratively possible, the respondents-authorities will find a suitable posting for him. 8 In the facts and circumstances indicated above, this Court fails to see how the petitioner can resist the impugned transfer order. There is no vested legal right in the petitioner to hold the post of the Secretary, Madrasa Board where he was sent on deputation and it was always open to the State Government to recall him from there and to send him to his original posting. This Court, therefore, is unable to give any relief to the petitioner in this writ petition but it is hoped and expected that the respondents-authorities are sincere in their assurance given to the Court through G.P.VIII that once the petitioner joins his post in tne Institute, they would try to find a suitable posting for him elsewhere, as early as possible. 9. At this stage, this Court may take note of the submissions made by Mr. Singh appearing for the Chairman, Madrasa Board. Mr. Singh objected to the petitioners transfer and the posting of respondent no. 5 in his place and submitted that the action of the State Government was not only prejudicial to the interests of the Board but it was also in violation of Section 14 of the Bihar State Madrasa Education Board Act, 1981 (hereinafter referred to as the Act). With reference to Section 14 of the Act, Mr. Singh submitted that anyone could be posted as Secretary in the Board only in consultation with the Chairman. With reference to Section 14 of the Act, Mr. Singh submitted that anyone could be posted as Secretary in the Board only in consultation with the Chairman. He further submitted that the posting of respondent No. 5 as Secretary of the Board was made without any consultation with the Chairman and it was, therefore, violative of Section 14 of the Act. Without proceeding any further, this Court would wish to point out that so far as taking away the petitioner from the Madrasa Board and sending him to the Institute is concerned, the Chairman can have no say in the matter because in any event the petitioner was there on deputation and the petitioners transfer from the Board to the Institute must, therefore, be seen separately from the posting of someone else in his place. This writ petition filed by the petitioner was to challenge his transfer from the Board to the Institute and as seen above, this challenge must fail. 10. So far the other issue sought to be raised by the Chairman is concerned, that issue cannot be permitted to be raised in this writ petition and the Chairman of the Board must take recourse to such remedies as may be available in law. 11. This writ petition, thus, fails and is dismissed with the Dismissed observations.