Deo Nath Singh vs State of Bihar and Others

S.N. Jha, J.—The dispute in this case relates to Headmastership of Dwarika Nath High School, Muzaffarpur. The Petitioner been transferred from the post and Respondent No. 6 Tripurari Mishra posted in his place by the impugned order of the Director, Secondary Education dated 29.10.2003. Copy of the order is enclosed as Annexure 1 to the writ petition.

The case of the Petitioner is that on his promotion to the post of Headmaster he was posted at High School, Dayalpur(sic) Vaishali District in 1991. In 1993 he was transferred to S.P.S. Seminary, Sonepur, (sic) 1995 he was transferred again to Tripurari Academy, Samastipur. On 31.12.99 he was transferred to the school in question (sic) Dwarika Nath High School, Muzaffarpur where he joined on 4.1.2002. He has been transferred allegedly on administrative ground which is not borne out by the record. Nothing of the kind was mentioned in the office notes. The Minister considering the case of Respondent No. 6 directed that he be posted in the school and Petitioner be transferred on administrative ground. It is relevant to mention here that Respondent No. 6 was under suspension earlier. By the said order dated 29.10.2003 the suspension was revoked and he was exonerated from the departmental proceeding accepting his explanation.

The Department has filed counter affidavit taking the stand that the Petitioner and Respondent No. 6 have been transferred to the schools of their first posting-as Headmaster in the light of the new rules. As regards the Petitioner it has further been stated that allegations have been received against him which are under examination/consideration. Respondent No. 6 has also filed counter affidavit enclosing documents in support of his case inter alia that the transfer of the Petitioner was on administrative ground.

Shri Rajendra Prasad Singh, learned Counsel for the Petitioner submitted that the new rules envisage transfer by establishment committee and on any administrative ground on the recommendation of the Managing Committee of the concerned school. Neither the Establishment Committee took any decision nor the Managing committee ever made any such recommendation nor any administrative ground as defined in the rules is made out. in the circumstances, there has been complete violation of the rules and the impugned order cannot be sustained. Counsel also submitted that posting of Respondent No. 6 in the school in question on the premise that Dwarika Nath High School is the school of his first posting is not correct as the Respondent No. 6 was posted on his promotion as Headmaster at Jouharimal High School, Bairgania, district Sitamarhi which has to be treated as school of his first posting.

From the pleadings of the parties, transfer of the Petitioner appears to be for two-fold reasons-mandate of the rule which provides for posting of Headmaster/Assistant Teachers in the school of their first posting, as well as on administrative ground. So far as the first is concerned, there is no dispute that High School, Dayalpur, Vaishali where the Petitioner has been posted by the impugned order was the school of his first posting. The only dispute is regarding Respondent''s first posting as Headmaster. Counsel for Respondent No. 6 in this regard stated that Respondent was posted initially at Jouharimal High School, Bairgania, Sitamarhi but as the post was not vacant, by Annexure-R on 15.5.90 he was posted in the school in question i.e. Dwarika Nath High School, Muzaffarpur and therefore the said school must be regarded as the school of first posting of Respondent No. 6. I find substance in this contention.

Coming to the submission that no decision was taken by the Establishment Committee and/or the Managing Committee of the school regarding transfer of the Petitioner, it may be observed that the present case is really not one of transfer simplicitor. In terms of Rule 1(4) of the Rules the Headmasters/Assistant teachers posted in schools other than schools of their first posting are supposed to return to such schools. The rule thus contemplates return of the services of the Headmasters/Assistant Teachers distinct from transfer. Undoubtedly, such return also involves transfer but any order passed in this regard would stand on different footing. So far as the transfer/postings are concerned the relevant provision is contained in Rule 2 of the said Rules. Rule 2 provides that after return of the Headmasters/Assistant Teachers to the school of their first posting in terms of Rule 1(4), ordinarily, they would be transferred only on administrative ground on the recommendation of the Managing Committee. In other words, after the Headmasters/Assistant Teachers are re-posted in the school of their first posting they can be transferred only in accordance with the provisions of Rule 2. Therefore, the submission that the transfer was without any recommendation of the Establishment Committee and/or Managing Committee appears to be out of place.

Counsel for Respondent No. 6 submitted that from Annexure-G to the Respondent''s counter affidavit it would appear that all was well with the working of the Petitioner and that is why the President of the Managing Committee communicated the decision of the Managing Committee to transfer the Petitioner vide Annexure-G. In this regard he pointed out that the Petitioner seeks to place reliance on Annexure-2 to the writ petition but from the original of Annexure-2 (extract from the resolution book) it would appear that document is interpolated version of the original. It was submitted that as the Petitioner seeks to take mileage on the basis of a forged document, it should be held that he has approached the Court with unclean hands and on this ground alone this writ petition should be dismissed. Dealing with this branch of the argument it was submitted on behalf of the Petitioner that the photocopy of the relevant resolution, dated 16.9.2002, was illegible and that appears to be reason for omitting clause ''Kha'' in Annexure 2 by the typist. It is not necessary to go into this dispute as to whether the interpolation/forgery, if any, was deliberate or bona fide. The fact remains that clause ''Kha'' of the resolution is not mentioned in Annexure 2. By Annexure-G the President of the Managing Committee recommended Petitioner''s transfer. If that is so, it would amount to compliance of Rule 2 of the Rules which provides for transfer on administrative ground on recommendation of the Managing Committee.

As regards the submission that decision was not taken by the Establishment Committee, it was submitted on behalf of the Respondent that Rule 2(1) empowers the State Government or any Officer of the State also to make transfer posting orders with respect to Headmasters and therefore if order is passed at the Government or Director''s level, without any corresponding recommendation of the Establishment Committee, the order cannot be said to be contrary to the rules. I find substance in the argument of the counsel.

As indicated above, the transfer of the Petitioner and Respondent No. 6 is in accordance with Rule 1(4) of the Rules which provides for return of the services of Headmasters/Assistant Teachers to the school of first posting and there being little doubt about the school of first posting of the parties, I do not think the order can be said to be violative of the Rules.

It was submitted on behalf of the Petitioner that validity of the Rules is under consideration by Division Bench of this Court, and as a matter of fact, the communiqu� issued by the State Government communicating implementation of the Rules has been stayed by this Court. On behalf of the Respondent it was submitted that there is no stay of the Rules and even if it (sic) were so, the transfer being on administrative interference by this Court. The submission of the counsel for the Respondent finds support from the counter affidavit of the State. The Respondent has given materials in the counter affidavit in support of the administrative ground into which I do not want to go in the present order inasmuch as the matter is still under examination/ consideration by the Government and observation(s) of this Court may prejudice the parties.

For the reasons aforesaid, I do not find any merit in this writ petition which is accordingly dismissed.