Jhaboo Pandit vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties. The petitioner being aggrieved by the notification contained in Memo No. 237 dated 31st December 2013 issued by the Respondent No. 3 - Deputy Secretary, Human Resources Development Department, Government of Jharkhand (Annexure-4), whereunder he has been transferred from the post of District Superintendent of Education, Giridih to the post of Principal, Primary Teachers Training College, Gumla, has preferred this writ application. At the same time, he has also sought a direction upon the respondents to allow him to continue on the present place of posting till normal tenure of three years.

The petitioner''s contention is that by notification of 30th December 2011 (Annexure-1), he was transferred from the post of Sub Divisional Education Officer, Godda to the post of District Superintendent of Education, Giridih which he joined on 02nd January 2012 and had been functioning thereafter without any complain. Again, by a notification of 29th December 2012, he was transferred as a Principal, Primary Teachers'' Training College, Bundu where again he joined and served for about five months. On his representation, the State Government vide notification no. 70 dated 8th May 2013 again posted him on the same post of District Superintendent of Education, Giridih to which, he submitted his joining. Seven month thereafter, by the impugned notification dated 31st December 2013, he has been once again posted as a Principal, Primary Teachers Training College, Gumla (Annexure-4).

Challenging the same, learned Senior counsel for the petitioner has inter-alia submitted that the petitioner belongs to the Jharkhand Education Service Cadre, who cannot be transferred to a teaching cadre which is a separate cadre. He has further submitted that within a short span of two years, he has been transferred twice which is contrary to the guidelines under the Circular dated 25th October 1980 prescribing a minimum of three years of tenure. Apart from the above, the main thrust of the challenge is on the ground that the impugned transfer is in teeth of the National Council for Teacher Education (NCTE) Regulation notified on 18th June 2002 which prescribes a minimum qualification for a Principal of a Teachers'' Training College. According to the petitioner, he does not fulfill the eligibility qualification of a Principal as he is neither Ph.D. in education, nor has ten years of teaching experience. The N.C.T.E. Act being a Central Legislation, has overriding effect on the State Regulation and cannot be ignored. Learned Senior counsel has also relied upon a judgment rendered by the learned Single Bench of this Court in the case of Amnanda Kumari vs. State of Jharkhand & others [WPS 4996/2008] dated 14th October 2009. Learned Senior counsel has referred to Rule-4 of Bihar Education Service (Class-II) Rules of 1973 which only provides source of recruitment. He has submitted that it does not create a cadre as alleged by the respondent comprising a teaching cadre of the Education Service (Class-II). By referring to Rule 12 of the Jharkhand Service Code, he has sought to distinguish the reliance of the respondents upon the provisions of Bihar Education Service (Class-II) Rules, 1973 whereunder, they have treated the petitioner as belonging to the teaching cadre whose services can be placed in a teachers training college as well. On these grounds, the impugned order has been challenged by the writ petitioner.

Respondents have appeared and filed their counter affidavit. As per the respondent State, the Rules for recruitment of officers in Class-II of State Education Service was notified in March 1974 which provides that the State Education Service comprises four branch which reads as under:

I. Principal in Govt. High School.

II. Training, Principal in Primary Teachers Training Colleges/Lecturers in Govt. Teachers Training Colleges.

III. Inspection, (District Superintendent of Education/District Education Officers/Sub Divisional Education Officer)

IV. Women branch-District Inspectors of Schools/Principal Women Primary Teachers Training Colleges/Principal Govt. Girls High Schools.

According to the respondent, the petitioner was appointed directly in teaching branch vide notification no. 2/A-10.1.94 (Part) Primary Education-44 dated 7th February 1994. Thereafter, he was posted as a lecturer in a Government Teachers College, Bhagalpur. By relying upon Annexure-A to the counter affidavit which is a statement of the place of posting of the petitioner, it has been submitted that in most of his service career, he has been posted to the original teaching branch. Respondents have also stated that the petitioner is a double M.A. with M.Ed. which is a requisite qualification for selection in a teaching branch, as per recommendation of the N.C.T.E. Act and accordingly, he was posted as a Principal of Primary Teachers'' Training College, Gumla. For the same reason, by the earlier notification of 29th December 2012, he was transferred as a D.S.E., Giridih and posted as a Principal, Primary Teachers'' Training College, Bundu. It is contended on their behalf that as per the decision of the Establishment Committee, not only the petitioner but five other officers of the teaching/training branch who were also directly appointed in a teaching branch, have also been posted to their original cadre post in teaching/training branch for smooth functioning of the said branch. On these grounds, respondents have sought to sustain the impugned notification of transfer of the petitioner as a Principal, Primary Teachers'' Training College, Gumla.

Counsel for the respondent has also relied upon the judgment rendered by the Hon''ble Supreme Court in the case of B. Varadha Rao Vs. State of Karnataka and Others, in support of his contention that the transfer is an ordinary incidence of service of a Government Servant appointed to a particular cadre who cannot claim to remain at a particular place unless, his appointment itself is to a specified non transferable post. A transfer order made in the exigencies of service and without any disadvantage to the concerned Government Servant, should not be interfered with unless it is malafide or made for collateral purpose in oblique exercise of power. He has also relied upon a judgment of the learned Single Bench of this Court in the case of Kamal Nath Jha vs. State of Jharkhand & others and analogous cases [WPS 4118/2013 and analogous cases] to submit that the petitioner cannot complain if he is being posted in his parent teaching branch. According to the learned counsel, the petitioner despite being posted earlier on more than one occasions, in Teachers'' Training College, never objected to the same. Therefore, no grounds for interference are made out in the impugned order of transfer which is in the nature of routine transfer issued by the Human Resources Development Department, Government of Jharkhand and under the orders of His Excellency The Governor of Jharkhand.

I have heard learned counsel for the parties and gone through the relevant materials on record including the impugned order. From perusal of the averments on record, this fact is evident that the petitioner was appointed in the teaching branch by the notification dated 7th February 1994 and was posted as a Lecturer in the Government Teachers Training College, Bhagalpur. He also served as a Lecturer in the Teachers'' Training College, Muzaffarpur and subsequently also at the Teachers'' Training College, Deoghar for a tenure of almost three years from November 2004 till September 2007. In between, the petitioner has also been posted as a Sub Divisional Education Officer, Sahibganj and later on, as a Sub Divisional Education Officer, Godda between 2007 to 2012 before he was transferred and posted as a District Superintendent of Education, Giridih by the Notification dated 30th December 2011. The petitioner admittedly is a member of the State Education Service (Class-II) which also comprises of the Principal of Primary Teachers'' Training Colleges/Lecturer in Government Teachers Training Colleges. It is also true that the petitioner has a qualification of double M.A. with M.Ed. As per the N.C.T.E. Act relied upon by the petitioner, qualification of the Principal as laid down under Regulations of 2002, are the academic and professional qualification as prescribed for the post of Lecturer apart from the Ph.D. in education and ten years teaching experience. These qualifications are laid down for the post of Principal of Teachers'' Training Colleges.

Though, the petitioner has sought to contend that the teaching branch is not a part of the cadre of State Education Service, but perusal of Rule-4 of 1973 Rules also show that the Bihar Education Service comprises of different branches including the teaching branch. Admittedly, the petitioner has been appointed in the teaching branch and has served as a Lecturer in a Government Teachers'' Training Colleges from time to time as indicated herein above and has also qualification for appointment as a Lecturer. In such circumstances, contention of the petitioner that he cannot be transferred as a Principal of Primary Teachers'' Training College being a part of Jharkhand Education Service (Class-II), cannot be accepted. In the case of Amnanda Kumari (Supra) relied upon by the petitioner, the said petitioner did not have the minimum qualification for appointment as a Lecturer, though she was transferred as such in a Primary Teachers'' Training College. Learned Single Judge in the said case also found that though, there were eighteen such candidates who were having requisite qualification of Masters Degree coupled with B.Ed qualification, but they were not considered and appointed as Lecturer. Instead, such petitioner who apparently did not have the qualification for appointment as a Lecturer, was posted as such, from her earlier posting as a Block Education Extension Officer. The learned Single Judge, in such circumstances, while considering the N.C.T.E. Norms, has found the impugned order of transfer of such petitioner as a Lecturer in the Government Teachers Training College at Deoghar as bad in law.

In the present case, as discussed herein above, the petitioner himself belongs to the original cadre of teaching branch and was appointed as such and posted on several occasions earlier as Lecturer in Teachers'' Training College for a period of more than seven years on the post of Lecturer in teaching capacity in the Training Colleges. He never seems to have objected earlier against his posting to the Teachers'' Training Colleges. The Government in the exigencies of the work and in the interest of administration, has chosen to post the petitioner and few others in the Teachers'' Training Colleges. It is also true that in absence of the Principal of such Teachers'' Training College, the administration and teaching work of the college is bound to suffer. Though, it has been submitted by the petitioner that the State Authorities are obliged to follow the guidelines of N.C.T.E. for appointment to the post of Principal in the Teachers'' Training Colleges, but in the given facts and circumstances of the case, the petitioner having the qualification of a Lecturer as also having served as such for considerable number of years in Teachers'' Training Colleges earlier, has been posted in the exigencies of the work in the college in question as also for effective and smooth functioning of the Teachers'' Training College upon the recommendation of the Establishment Committee and under the orders of the Governor, State of Jharkhand. Respondents have also referred to in their counter affidavit about certain other persons belonging to the teaching branch who has also been transferred and posted in such capacity in various Teachers'' Training Colleges by the impugned notification. Apart from the above, transfer being the incidence of service, and the petitioner having failed to show any serious prejudice or alteration in the service condition as a result of the impugned transfer, cannot be allowed to complain against such transfer. In the wake of the aforesaid facts and circumstances discussed herein above, the petitioner has failed to make out any grounds for interference in the impugned order. The writ petition being devoid of any merit, is accordingly dismissed.