Dwanda Bahadur Singh vs State of Bihar and others

S.B. Sinha, J.—This writ petition is directed against the order dated 24th March, 1987 passed under the signature of Director, Primary Education (respondent no. 2) as contained in Annexure 13 to the writ petition whereby and whereunder the earlier order of the transfer of the petitioner dated 13th January, 1987 was cancelled and an earlier order dated 37th June, 1986 whereby and whereunder the petitioner was posted in the post of lecturer in Primary Teachers'' Education College, Dariapur, East Champaran was reinforced. The facts of the case lie in a very narrow compass.

The petitioner was posted as Block Education Extension Officer, Dighwara in the district of Saran and by an order dated 27th June, 1986, issued under the signature of respondent no 2, he was transferred to Primary Teachers'' Education College, Dariapur, East Champaran on the post of lecturer. By an order dated 13th January, 1987 the aforementioned order was modified as a result whereof the petitioner was transferred and posted as Sub-Inspector of Schools, Chapra Municipality in the district of Saran from the date of joining of his new post.

According to the petitioner on 15th January, 1987 he was relieved by Block Development Officer, Dighwara, Saran. However, the said Block Development Officer requested the Duputy Inspector of Schools, Chapra, to let the petitioner continue as Acting Block Education Extension Officer, Dighwara till a new had joined the said post. After being relieved from Dighwara, the petitioner allegedly joined his new post as Sub-Inspector of Schools, Chapra Municipality on 16.1.1987 and submitted his joining report. The petitioner has asserted that his joining report was accepted and wherefor various concerned authorities were informed. The petitioner, in this connection, has filed several documents, which are contained in Annexures 8, 9 and 10 to the writ petition.

The petitioner has further asserted that at the material time one Raj Ballabh Singh, Block Education Extension Officer was acting as Sub-Inspector of Schools in Chapra Municipality on deputation and he was transferred from the post of Block Education Extension Officer, Sadar Chapra to Teachers'' Training College at Surhattha, Vaishali by an order dated 31st December, 1986 as a lecturer, but the said Raj Ballabh Singh at the instance of the respondent nr. 4 was not handing over the charge to the petitioner. The respondent no. 5 directed the aforementioned Raj Ballabh Singh to hand over the charge to the petitioner but the same was not done immediately. Only on 6.3.1987 the said Raj Ballabh Singh handed over the charge of Sub. Inspector of Schools, Chapra Nagarpalika to the petitioner.

According to the petitioner he was carrying out his duties of Sub-Inspector of Schools in the Chapra Nagarpalika. On 24.3.1987 the impugned order was issued. As a result of the said order the respondent no. 6, Md. Zakaria was transferred to the post of Sub-Inspector of Schools, Chapra Nagarpalika and by the second part of the said order the petitioner''s order of transfer from the post of Block Education Extension Officer, Dighwara to the post of Sub-Inspector of Schools, Chapra Municipality was cancelled and again the petitioner was transferred to the post of lecturer Primary Teachers'' Education College, Dariapur, East Champaran.

In this case two counter affidavits have been filed; one on behalf of the respondents no. 1 and 2 and another of the respondent no. 6. The State of Bihar in its counter affidavit has stated that Annexure 13 was passed in consonance with the earlier decision.

The petitioner has alleged in the writ petition that the respondent no. 6 is a resident of Chapra and he has been in the district of Saran since 1962; the same has been denied as not correct in the counter affidavit. In the said counter affidavit it has been contended as follows :

It is relevant to state here that when the petitioner was transferred and posted to the post of lecturer on 27.6.1986, he evaded to join the said past and finally did not join there. The petitioner was in the look out of a posting of his own choice and on 13.1.1987 when he was transferred to the post of Sub-Inspector of Schools, Chapra Municipality (Saran), the petitioner got himself relieved from the said post by the Block Development Officer, Dighwara for joining the said post. It is stated that the Block Development officer was not competent to relieve the petitioner from the post of Block Education Extension Officer, Dighwara (Saran) It would be relevant to point out here that the Deputy Inspector of Schools, Chapra, also did not accept the joining of the petitioner as he was not relieved from Dighwara (Saran) by the competent authority.

That it is further slated that on 5.3.1987 the petitoner took over charge of Sub-Inspector of Schools Chapra Municipality, and on the same date handed over charge of Block Education Extension-Officer, Dighwara to respondent no 5. on 6.3.1987. the petitioner again took over charge of Block Education Extension office Dighwara (Saran) from respondant no. 5 and this the petitioner was virtually holding two posts at the same time which is against the departmental rules.

It may be relevant to mention here that the respondent no 6 has already assumed charge of Sub Inspector of Schools, Chapra Municipality, on 31.3.1987 as would be evident from Annexure 13 of the writ petition. The joining of respondent no 6 has been accepted by the competent; authority. Therefore, the petitioner''s claim that he joined as Sub-Inspector of School Chapra Municipality before respondent no 6 has no leg to stand especially In view of the fact that his joining and being relieved from the post (Dighwara) which he is still holding was irregular and illegal.

It has further been stated therein as follows :

It is stated that on 27.6.1986 when the petitioner was transferred and posted to the post of lecturer, Primary Teachers Education College, Dariapur (East Champaran), the petitioner did not join the said post and evaded to join the same. On 13.1.1987 when the petitioner was transferred and posted to the post of Sub-Inspector of Schools, Chapra Municipality (saran), the petitioner got himself relieved for joining the post of Sub-Inspector of Schools, Chapra Municipality without waiting for any instructions from the Department. Though the Block Development Officer, Dighwara (Saran) was not competent to relieve the petitioner from the post of the Block Education Extension Officer, Dighwara (Saran) he relieved the petitioner and recommended to continue him to act as such after joining the post of Sub-Inspector of Schools, Chapra Municipality, it is further stated this is nothing but arbitrary and malafide action of the petitioner which should not have been done by him being a Government servant.

That with regard to the statement made in paragraphs 7 and 8 of this writ application it is stated that the Duputy Inspector Schools, Chapra did not accept the joining of the petitioner as Sub-inspector of Schools, Chapra Municipality rather he cancelled the irregular joining of the petitioner. Hence the statements made by the petitioner in these paragraphs are misleading.

Mr Rajendra Prasad Singh, learned counsel appearing for the petitioner raised three fold contentions. He firstly submitted that in terms of Article 115 of the Bihar Education Code 1961, no Sub-Inspector of Schools should be posted in his home sub-division and in that view of the matter, the posting of the respondent no. 6 at Chapra itself is wholly illegal and without jurisdiction. The learned counsel, in this connection, has drawn my attention to Annexure 29 to the writ petition wherefrom it appears that the respondent no. 6 belongs to Chapra and he had been posted there since, 1962. The learned counsel has further contended that the impugned order has been passed on wrong premises as the petitioner had been holding the post of Sub-Inspector of Schools, in which post the respondent no. 6 could not have-been transferred on the supposition that the said post is vacant.

The learned counsel has further submitted that the impugned order of transfer is wholly malafide as the petitioner has been transferred within a period of two or three months from the date of his posting.

The learned counsel further submitted that there has been gross violation of the resolution of the State of Bihar dated 25.10.1980 in so far as the impugned order has been passed without recommendation of the Establishment Committee and without the prior approval of the competent authority.

In this connection, the learned counsel has placed strong reliance upon a division bench decision reported in Man Singh Vs. The State of Bihar (1982 B.B.C.J. 392 : 1982 PUR 368).

On behalf of the respondents, the learned counsels submitted that the Bihar Education Code does not have any statutory force. It has further been pointed out that by a notification dated 11.9.1979 the post of a Subdivisional Education Officer was made a gazetted post. In this connection my attention has also been drawn to a decision of this Court in Nagrain Singh Vs. State of Bihar and others reported in 1980 B.B.C.J. 176 wherein this court has held that provisions of Education Code which were published in the Gazette of 23rd March, 1955 and which were not inconsistent with any provisions of Bihar High School (Control and Regulation of Administration) Act, 1960 received statutory recognition in matters connected with the aforesaid Act but other provisions of the Education Code are not statutory. In was further held in the said decision that Article 118 of the Education Code being not statutory in nature could be amended or modified by another Government order. It has been pointed that the aforementioned Article 115 of the Bihar Education Code has been inserted by the Government Order No. 5489 dated 22nd November, 1955.

It has further been pointed out that in terms of the resolution of the State of Bihar dated 25.10.1980 upon which reliance has been placed by the petitioner himself, all the previous orders have been superseded and in this view of the matter, it has been submitted that Article 115 of the Bihar Education Code has no existence in the eye of law and in any event does hot have the force of a statute.

It has further been contended on behalf of the petitioner that admittedly the order dated 27.6.1986 whereby and whereunder the petitioner was transferred as lecturer in the Primary Teachers'' Education College at Daria-pur was passed after obtaining approval of the Establishment Committee. In this connection my attention has been drawn to paragraph 13 of the reply filed by the petitioner to the counter affidavit filed on behalf of the respondent no. 6, which is as follows:--

That in reply to statement made in paragraph no. 29 of the counter affidavit, it is stated that the petitioner''s original transfer order was made and approved by the Establishment Committee whereas the transfer order of Respondent No. 6 has not been approved by the Establishment Committee at all.

According to the learned counsel by reasons of the impugned order merely the aforementioned order dated 27th June, 1986 was reinforced and in that view of the matter the question of obtaining any approval of the Establishment Committee did not and could Dot arise.

The learned counsel has further submitted that the Director of Primary Education had been delegated with the powers to pass an order of transfer and in this view of the matter as the impugned order has been passed under the direction of the State of Bihar an implied approval of the State of Bihar must be assumed. Learned counsels, therefore, contended that in this view of the matter it cannot be said that there has been any violation of the resolution dated 25th August, 1980 adopted by the State of Bihar.

The learned counsel has further pointed out that the purported order relieving the petitioner by the Block Development Officer is wholly illegal as the said officer had no jurisdiction to relieve the petitioner. It has further been submitted that if the impugned order is quashed by the Court the same would give rise to another illegal order meaning thereby the order dated 13th January, 1987, which was not having been passed in consonance with the provisions of the resolution dated 25th October, 1980 and in this view of the matter, this Court should refuse to exercise its discretionary jurisdiction.

Reference in this connection has been made to Hari Prasad Manila! and others Vs. Additional Collector and others (1978 B B.C.J. 575 : 1978 PLJR 636) and Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, .

It has further been contended on behalf of respondents that even assuming that the order of transfer of the respondent no. 6 to Chapra was illegal, the petitioner cannot get any advantage out of the same as the petitioner has no legal right to be posted at a particular place.

In reply to the aforementioned contentions Mr. Rajendra Prasad Singh, the learned counsel appealing for the petitioner, has submitted that the fact that the respondent no. 6 belongs to Chapra has not been disputed. He further submitted that even assuming that Article 115 of the Bihar Education Code does not have a statutory force but the same has the force of law in view of the decision of the Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and Another, .

It has further been submitted that the petitioner had all along been posted at Chapra pursuant to the order of transfer dated 13th January, 1987. The learned counsel has further drawn my attention to the enquiry report, which is contained in Annexure J/6 to the application for vacating the order of interim stay passed by this court and filed on behalf of the respondent no. 6. The said report has been made by the Regional Director of Education wherein it has been found that the petitioner had been receiving salary to the post of Sub-Inspector of Schools, Chapra Nagarpalika.

The questions which arises for consideration in this writ petition are essentially questions of fact. In view of the allegations and the counter allegations made in the writ petition and the counter affidavits, it is not possible for this court to come to a definite conclusion as to whether the Block Development Officer was the relieving authority in respect of the petitioner and as to whether the petitioner was legally relieved from his post on 5.3.1987. The question as to whether the petitioner had been functioning in the post of Sub-Inspector of Schools at Chapra becomes wholly immaterial in the event if it is found that the petitioner was not legally relieved by Block Development Officer or in other words he was not legally entitled to relieve the petitioner.

Further, in the instant case, it is evident that the petitioner was transferred validly by the State of Bihar in the post of lecturer in Teachers Training College at Dariapur by an order dated 27.6.1986. The said order was modified by the State of Bihar evidently without consulting the Establishment Committee. By reason of the impugned order only the order dated 31.1.1487 has been cancelled, which irrespective of the fact as to whether the petitioner had been legally functioning in the post of Sub-Inspection of Schools or not, the State of Bihar was entitled to recall the same and reinforce the order dated 27.6.1956. It is true that an employee should not ordinarily be disturbed from his post before a period of three years unless their exists an administrative exigency.

However, in the instant case, the petitioner did not acquire any legal right to serve as Sub-Inspector of Schools at Chapra pursuant to the order dated 13.1.1987 as the same, on the petitioner''s own showing, was not legal.

The Supreme Court of India in Shanti Kumari Vs. Regional Deputy Director Health Services (A.I.R. 1981 S.C. 1577), has clearly held that if a person has been transferred in violation of any of the circulars issued by the State, in that event the petitioner should file a representation before an appropriate authority bringing to its notice the violation of the said earlier decision.

Reference in this connection may be made to Lakhan Singh Vs. State of U.P. and others (1983.Vol. 2. S.L.J. 110).

Recently, the Supreme Court in B. Varadha Rao Vs. State of Karnataka and Others, has held that the transfer is metely an incident of service.

In view of the aforementioned authoritative pronouncement of the Supreme Court, I am of the view that regard being had to the facts and circumstances of this case, the petitioner has no legal right to maintain this writ petition.

I am further of the view that Article 115 of the Bihar Education Code has no force of law as the order of transfer is not an implied condition of service. However, it goes without saying that the State is bound to follow its policy decision and give effect to its own circulars and orders. The State is to be guided only by rule of law in this situation, I have no other option but to dismiss this writ petition.

However, in view of the aforementioned decision of the Supreme Court in Santi Kumari''s (supra), the petitioner may file a representation before the appropriate authority. I am sure the concerned authority shall not only take into consideration the grievances of the petitioners in obeying the order of transfer but shall also take into consideration the other relevant facts including the fact as to whether the post of Sub-Inspector of Schools in Chapra Municipality was vacant or not and whether the respondent no. 6 being a resident of Chapra had been allowed to occupy one post or other in the said district itself since 1962.

In this connection, I may usefully quote the following observations of Supreme Court in Vardha Rao''s case (supra):--

One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disprupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It, therefore, follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stands on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.

The representation of the petitioner, if filed, should be disposed of with utmost expedition. The petitioner shall also be entitled to file an application before the appropriate authority for staying the implementation of the impugned order of transferred dated 24.-3.1987, which is contained in Annexure 13 to the writ petition, and the said authority shall dispose of the said application on its own merits. With the aforementioned observations and directions this writ petition is disposed of but without any order as to costs.