PREM KUMAR vs STATE OF BIHAR - 2021 Supreme(Pat) 998

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 998

IN THE HIGH COURT OF PATNA
Chakradhari Sharan Singh, J.
PREM KUMAR – Appellant
Versus
THE STATE OF BIHAR AND OTHERS – Respondents
Civil Writ Jurisdiction Case No. 8099 of 2020
Decided On : 15-04-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr. Ram Sagar Singh.
For the Respondent: Mr. Madhav Pd. Yadav.

Headnote:
Service Law – Transfer – Generally, transfer in government service is an incidence of service and Courts, exercising power of judicial review under Article 226 of Constitution of India, do not normally interfere with such decisions of transfer unless decision is found to be beyond jurisdiction, malafide and punitive in nature – Rule 10 of 2006 Rules prescribed that 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 – Transfer of a government servant cannot be used as a cloak of punishment since it would be malafide exercise of power. (Paras 13 and 15)
Bihar District Cadre Secondary and Senior Secondary Teacher (Appointment and Service Condition) Rules, 2006 – Rule 10 [Now, Bihar District Board Secondary and Senior Secondary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 – Rule 16(iii)] – Transfer of Secondary Teacher – Service condition of petitioner was governed by 2006 Rules – Respondents cannot rely on 2020 Rules, which came into force with effect from date of its notification i.e. 20.08.2020, whereas impugned orders had been passed much before coming into force of said Rules – An order of transfer passed in violation of statutory Rule or Regulation will be illegal and, will for that reason alone is unsustainable – Rule 10 of 2006 Rules prescribed that 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 – Transfer of a government servant cannot be used as a cloak of punishment since it would be malafide exercise of power – Impugned order of transfer, being in violation of mandatory statutory provisions under 2006 Rules, is patently illegal and requires interference – Impugned order set aside. (Paras 12 and 16)

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. 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 requ

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