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2014 DIGILAW 764 (PAT)

Pratibha Kumari v. State of Bihar through the Principal Secretary, Human Resources Development Department, Government of Bihar

2014-07-11

CHAKRADHARI SHARAN SINGH

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ORAL ORDER 1. Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State of Bihar. 2. The petitioner seeks quashing of the transfer order dated 27.06.2014 issued under the signature of Director, Primary Education, Government of Bihar to the extent it relates to petitioner’s transfer from the post of Principal, Government Basic School Karmadih, Muzaffarpur to Government Basic School, Balua Harsidhi, East Champaran. 3. From the impugned order it appears that transfer order with respect to the several teachers of Basic School including the petitioner has been issued on the basis of their respective representations. It has been also mentioned in the said order since the transfers are being made on the basis of their representation, they will not be entitled for transfer allowance. 4. It has, however, been stated in the supplementary affidavit filed on behalf of the petitioner that she did not make any request for transfer to another school in the district of East Champaran from Muzaffarpur. He submits that the said transfer cannot be said to be based upon the representation filed by her and cannot be treated as request transfer. It has also been stated that against the activities of certain disgruntled and rowdy elements in the school, the petitioner had made a complaint before the District Magistrate, Muzaffarpur vide her letter dated 28.05.2014, which probably has been taken to be her representation for transfer, which is not the fact. 5. I have perused the said letter dated 28.05.2014 (Annexure-3). This communication cannot be treated to be a representation for transfer. However, learned counsel appearing on behalf of the State has drawn my attention to the statement made in paragraph No. 5 of the supplementary affidavit in which it has been stated that the petitioner had submitted a representation on 02.06.2014. A copy order of the said representation has, however, not brought on record, since, according to the statement in the supplementary affidavit, the representation has got misplaced. In paragraph No. 6 of the supplementary affidavit filed on behalf of the petitioner, it has been stated that the petitioner never opted her transfer from district of Muzaffarpur to another district. 6. Transfer of a Government Servant is an incidence of service. For administration exigencies, the transfer can be made even without completion of normal period of posting. In paragraph No. 6 of the supplementary affidavit filed on behalf of the petitioner, it has been stated that the petitioner never opted her transfer from district of Muzaffarpur to another district. 6. Transfer of a Government Servant is an incidence of service. For administration exigencies, the transfer can be made even without completion of normal period of posting. Judicial review in such matters is impermissible unless it is demonstrated that the order has been passed without jurisdiction and in breach of any statutory rule or malafide has been established against the person passing such order. However, in the present case, the basis of transfer, is the petitioner’s own request for transfer which is being denied by the petitioner. 7. In such view of the matter, I dispose of the writ application with a direction to the petitioner to file a representation before the Director, Primary Education, Government of Bihar, by Monday i.e. 14.07.2014 bringing to his notice all such facts. 8. In view of the urgency of the of the matter, I direct the Director, Primary Education, Government of Bihar, to consider the petitioner’s representation and dispose it of within two weeks from the date of said representation. If there is no request made by the petitioner for her transfer, which is said to be the basis for issuance of the impugned order of transfer from Government Basic School Karmadih, Muzaffarpur to Government Basic School, Balua Harsidhi, East Champaran, the Director, Primary Education, shall be required to recall the impugned order. 9. In the meanwhile, no coercive step shall be taken to compel the petitioner to join to the transferred post. 10. It has been stated by the petitioner that petitioner’s husband is posted in Muzaffarpur and if the impugned order is executed, her family will stand dislocated. This Court expects that the Director, Primary Education, while considering the petitioner’s representation will also take into account this aspect of the matter. 11. This application is disposed of accordingly.