KANHAIYA RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) A short question of law is raised in this writ petition. Petitioner is a Teacher in Government School and governed by the Bihar State Nationalized Primary School Teachers (Transfer) Rules, 2006 as framed by the State under Article 309 of the Constitution. He filed this writ petition challenging the order as contained in Memo No. 1302 dated 7.7.2010 passed by the District Superintendent of Education, Bhojpur. By the said impugned order, as contained in Annexure-5, Petitioner has been transferred from his parent School, where he was the Headmaster, to another School. In the same order, another Teacher from another School has been transferred to this School to replace the Petitioner. This Teacher has intervened and his-intervention application being allowed is now intervener Respondent No. 5 in this writ petition. He has filed a counter affidavit as well. It is stated that Petitioner has been relieved and intervener Respondent No. 5 has taken over charge and, as such, this Court should not interfere in the matter. To this all I can say is that the writ petition was filed much before the transfer order to take effect. Petitioner was forced to handover charge and Respondent No. 5 took over charge during pendency of the writ petition. That would not preclude the Petitioner from challenging the order of transfer especially when the challenge is on ground of ultra vires. On behalf of Petitioner, it is submitted that under the 2006 Rules, as aforesaid, and in particular Rule 3 thereof, State has absolutely no authority to transfer a Teacher. He submits, with reference to Rule 3 thereof, that transfer is now permissible only on the volition of the Teacher and not otherwise and that too in the contingency as mentioned in Rule 3. On the other hand, the intervener Respondent No. 5 submits that as Petitioner has been suspended and departmental proceedings initiated against him for various derelictions, he has rightly been transferred to another School. Learned Counsel for the State submits that the transfer has been made in general interest and on administrative ground. He submits that transfer is an incidence of service and, as such, the case does not call for interference. The facts not being in dispute, with consent of parties, the writ petition has been heard for disposal at this stage itself.

(2.) Having considered the matter, in my view, the writ petition must succeed. The order of transfer, as contained in Annexure-5, cannot be sustained. The simple reason for this is that the State has now framed Rules under Article 309 of the Constitution being the Rules, as above noted. Rule 3 thereof clearly provides that the post of Teacher is non-transferable. It further provides that transfer is possible only in the contingency mentioned hereinafter. There are two contingencies which are mentioned, firstly in cases of mutual transfer and secondly in case of transfer at the request of the Teacher to any other available place subject to such request being made only twice in the career and that too at an interval of not less than five years. Thus seen, in my view, the Rules have made this employment a nontransferable employment. Once the Rule provides that it is non-transferable and provides also the contingency under which transfers can be made then, in my view, the maxim expressio unius est exclusio alterius would apply. The same is explained in the case of Hukam Chand Shyam Lai v. Union of India and Ors., 1976 AIR(SC) 789, relevant part of paragraph-18 is quoted hereunder:

(3.) Thus seen, the State has no power to transfer a Teacher under any contingency. The power of transfer now is exclusively the privilege of the employee. That being so, the impugned order cannot be sustained and has to be quashed.