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2021 DIGILAW 336 (PAT)

PREM KUMAR v. STATE OF BIHAR

2021-04-15

CHAKRADHARI SHARAN SINGH

body2021
JUDGMENT : Chakradhari Sharan Singh, J. 1. Heard learned counsel for the parties online because of COVID-19 pandemic restrictions. 2. The petitioner was appointed as a Secondary Teacher (Math) and posted in Shri Krishna Mohan Smarak High School, Teus in the district of Sheikhpura (hereinafter referred to as "Teus High School") in January 2007. There does not appear to be any dispute that the service of the petitioner, at the time of his appointment, was governed by Bihar District Cadre Secondary and Senior Secondary Teacher (Appointment and Service Condition) Rules, 2006 (hereinafter referred to as "the 2006 Rules"). Rule 10(1) of 2006 Rules specifically prescribed that the post of secondary teacher shall be non-transferable. The proviso to sub-rule (1) of Rule 10, however, permitted such teachers to avail two optional transfers after completion of three years of service, during their service period. Sub-rule (3) of Rule 10 of 2006 Rules authorised a Committee constituted under Rule 6(vi) of 2006 Rules to carry out necessary transfer for removal of subject anomalies. 3. With the issuance of an order dated 06.09.2019, under the signature of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Sheikhpura (Respondent No. 6), the petitioner was transferred and posted to Utkramit Uchcha Vidyalaya, Badshahpur (Sheikhpura). The said order was issued on the basis of decision of the said committee taken in its meeting dated 06.09.2019 in exigencies of service. The petitioner represented against the said transfer by making representation on 12.11.2019 and thereafter he approached this Court by filing writ application under Article 226 of the Constitution of India, giving rise to CWJC No. 24880 of 2019, as his representation was not being considered. The petitioner was apparently relying on the provision under Rule 10(1) of 2006 Rules, according to which, the post was non-transferable. The writ application was disposed of by this Court by an order dated 20.12.2010 with a direction to Respondent No. 6 to dispose of the petitioner's representation within two months. 4. In compliance of the said order of this Court dated 20.12.2019, the District Education Officer, Sheikhpura came out with an order dated 11.01.2020 cancelling the petitioner's transfer from Teus High School. Later, by an order dated 06.03.2020, issued by the District Education Officer, Sheikhpura, the petitioner was declared to be the In-charge of the School, he being the senior-most teacher of the school. Later, by an order dated 06.03.2020, issued by the District Education Officer, Sheikhpura, the petitioner was declared to be the In-charge of the School, he being the senior-most teacher of the school. Soon thereafter, the District Education Officer came out with another office order dated 19.03.2020 cancelling the order dated 11.01.2020, which was said to have been passed in the light of this Court's order dated 20.12.2019. Further, a letter dated 01.06.2020 has been issued by the District Education Officer, Sheikhpura reiterating the petitioner's transfer from Teus High School to Utkramit Uchcha Vidyalaya, Badshahpur. 5. Keeping apparently the tone and the tenor of the letter dated 01.06.2020 the petitioner has submitted his joining on 03.06.2020 in Utkramit Uchcha Vidyalaya, Badshahpur. 6. The petitioner has challenged in the present writ application the order of transfer dated 06.09.2019, against which he had earlier filed the aforesaid representation, which was directed to be disposed of by this Court's order dated 20.12.2019, passed in CWJC No. 24880 of 2019. He has also put to challenge the order dated 19.03.2020, whereby the order canceling the order of his transfer has been cancelled by the District Education Officer, Sheikhpura. 7. It is the specific case of the petitioner that the said transfer is in breach of statutory provision under Rule 10 of 2006 Rules. 8. A counter affidavit has been filed on behalf of respondents stating therein that the District Programme Officer (Mid-day Meal), through his letter dated 22.09.2018, had levelled serious allegations against the petitioner and other staff of the school. The local ML A had also made a request for petitioner's transfer from the school, levelling serious allegations against him. The Chairman of the District Council, Sheikhpura had also sent a request letter to the District Education Officer to enquire into a written anonymous complaint submitted by the villagers alleging against petitioner of spoiling the academic atmosphere in the school. It was in that background that the District Education Officer had recommended transfer of two teachers including the petitioner, as there existed mutual rivalry between the two. Accordingly, the Committee in its meeting dated 06.09.2019, had resolved to transfer the petitioner on administrative grounds leading to issuance of impugned letter dated 06.09.2019 was issued. 9. It was in that background that the District Education Officer had recommended transfer of two teachers including the petitioner, as there existed mutual rivalry between the two. Accordingly, the Committee in its meeting dated 06.09.2019, had resolved to transfer the petitioner on administrative grounds leading to issuance of impugned letter dated 06.09.2019 was issued. 9. When the matter was taken up on 18.03.2021, the Court, considering the facts and circumstances, had directed for personal appearance of Respondent No. 6 to explain the authority under which the petitioner was transferred by the said order dated 06.09.2019. Subsequently, the matter was taken up online on 08.04.2021 during which Respondent No. 6 had also joined. A separate counter affidavit has been filed on behalf of Respondents No. 5 and 6. Respondent No. 6 informed this Court that since the presence of the petitioner in Teus High School itself was found to be seriously jeopardizing its academic atmosphere, a decision was taken by the Committee to transfer him on administrative grounds. In the said counter affidavit it has been stated that now Bihar District Board Secondary and Senior Secondary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 has been framed and notified by the Education Department, Government of Bihar on 20.08.2020, Rule 16(iii) of which provides that in case of proved financial irregularities, moral turpitude or serious charges, the Chief Executive Officer of the District Board can transfer a Headmaster/Teacher of a school on administrative grounds in the interest of the school and the students. Justifying the impugned order of transfer dated 06.09.2019, it has been stated that Rule 10(3) of 2006 Rules contains provision for making transfer. 10. Mr. Ram Sagar Singh, learned counsel appearing on behalf of the petitioner has submitted that evidently the impugned order is beyond jurisdiction, inasmuch as, the petitioner had not opted for transfer which could have been the basis of his transfer in accordance with the proviso to Rule 10(1) of 2006 Rules. He has argued that the transfer order is apparently punitive in nature which is impermissible and on that ground also the impugned order requires interference. 11. Mr. Madhav Prasad Yadav, learned GP-23 has, on the other hand, has submitted that the action taken by the Committee with the issuance of an order of transfer in administrative exigencies should not be interfered with by this Court. 11. Mr. Madhav Prasad Yadav, learned GP-23 has, on the other hand, has submitted that the action taken by the Committee with the issuance of an order of transfer in administrative exigencies should not be interfered with by this Court. He has argued that if the petitioner had any grievance against the impugned order of transfer he should have preferred an appeal before the Appellate Authority under Rule 15 of 2006 Rules. 12. As has been noticed above, the service condition of the petitioner was governed by 2006 Rules. The respondents cannot rely on 2020 Rules, which came into force with effect from the date of its notification i.e. 20.08.2020, whereas the impugned orders had been passed much before coming into force of the said Rules. 13. It is trite that an order of transfer passed in violation of statutory Rule or Regulation will be illegal and, will for that reason alone is unsustainable. It is true that generally transfer in government service is an incidence of service and the Courts, exercising power of judicial review under Article 226 of the Constitution of India, do not normally interfere with such decisions of transfer unless the decision is found to be beyond jurisdiction, mala-fide and punitive in nature. Rule 10 of 2006 Rules, in no uncertain terms, prescribed that the posts of teachers shall be non-transferable. Sub-Rule (3) of Rule 10, however, permits transfer for limited purpose e.g. removal of subject anomaly. 14. In the present case, it is specific stand of the respondents that because of several allegations of irregularities received against the petitioner by the competent authority, a decision was taken to transfer him. 15. It is settled principle that transfer of a government servant cannot be used as a cloak of punishment since it would be mala-fide exercise of power. It has been held by a Division Bench of this Court in case of Ajay Kumar vs. State of Bihar, 1984 (1) SLR 743 that a transfer order involving stigma cannot be proper exercise of power. It has been consistently held that there is no power to transfer by way of punishment. 16. In my opinion, therefore, the impugned order of transfer, being in violation of mandatory statutory provisions under the 2006 Rules, is patently illegal and requires interference. The impugned order is accordingly set aside. 17. This writ application is allowed. 18. It has been consistently held that there is no power to transfer by way of punishment. 16. In my opinion, therefore, the impugned order of transfer, being in violation of mandatory statutory provisions under the 2006 Rules, is patently illegal and requires interference. The impugned order is accordingly set aside. 17. This writ application is allowed. 18. Consequences of the quashing of the impugned order shall follow. 19. It is made clear that the Court has not gone into the merits of the allegations of misconduct against the petitioner. It will be, accordingly, open for the Respondents to proceed in accordance with law.