BRAJNANDAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) In a petition under Article 226 and 227 of the Constitution, the petitioner prays for quashing Annexure-l, By Annexure-1, Ambica Prasad Pandey (respondent No. 6) was transferred from Mahsa Vidyapeeth High School, Sahjahanpur to Mahanth Harihar Das High School, Gulmahia-bagh in the District of Patna.

(2.) The admitted position is that the Education Service Commission under Section 43 of the Bihar Secondary Education Board Act, 1976 (hereinafter referred to as 'the Act') advertised the post of Headmaster. Respondent No 6 applied for that post along with others. A panel of the Headmasters was prepared under Section 43(2) of the Act. On receipt of the panel, the Bihar Secondary Education Board thereinafter referred to as 'the Board') appointed respondent No. 6 as the Headmaster and directed the District Education Officer to post him at a certain High School. Respondent No. 6 was transferred to Mahsa Vidyapeeth High School, Sahjahanpur. His transfer was stayed by the direction of this Court by an order dated 16th September, 1981 in C.W.J.C. No 2866 of 1981. Thereafter, Ram Rup Prasad Rai, the Headmaster of Mahanth Harihar Das High School, Gulmahiabagh, retired on 30th November, 1981 It is on this post the Director of the Board directed him to act as permanent Headmaster of Mahanth Harihar Das High School, Gulamhiabagh, m Patna District. Previous to this, respondent No. 6 was posted at Sahjahanpur as Headmaster within the District of Patna. In other words, respondent No 6 was transferred within the Patna District by the Director by order dated 11th September, 1981. In the present case, the vacancy occurred in Mahant Harihar Das High School, Gulamhiabagh on 30th November, 1981 on account of the retirement of Ram Rup Prasad Rai. In other words, the vacancy occurred after 2nd October, 1980. The date is important, because on 2nd October, 1980, the Bihar Non-Government High Schools, Ordinance, 1980 (Bihar Ordinance No. 146 of 1980) (hereinafter referred to as 'the Ordinance') came into force.

(3.) By virtue of Section 3 of the Ordinance, all the non-Government High Schools were taken over by the State Government except minority schools proprietary schools and Central Schools. By virtue of Section 4(2) of the Ordinance, the effect of taking over of the non-Government High Schools by the State Government would be that all the Headmasters, teachers and other employees of the High School would be under the control of the State Government and they would be State Government employees. If it is so, then Rule 56 of the Bihar Service Code (hereinafter referred to as 'the Code') will come into play. Rule 56(a) provides that "the State Government may transfer a Government Servant from one post to another...". It is, therefore, clear that the Headmasters, teachers and other employees became Government servants and, as such, the State Government is empowered to transfer them from one post to another. In this connection, it is relevant to note that if a clerk is appointed on a certain district either in the Collectorate or in the District Civil Court, such a clerk or peon can be transferred within that district from one to another post. Hence, the State Government also can transfer a Headmaster or other teachers within the same district. This method of transfer can be changed only by making rules by the State Government. So long as the rules are not framed about the service conditions of the teachers, Headmasters and other employees. I direct the Director of the Board to follow the practice of transfer of Headmasters, teachers and other employees within the same district. This type of transfer is already prevalent in other departments of the State Government.