RAM CHANDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing Annexure "1", an order dated 25.1.84 by which respondent No. 4 has been appointed as Headmaster in P.L. Shahu High School, Sohsarai, police station Biharsharif, district Nalanda. The said order has been passed by the Director (Secondary Education) -Cum -Additional Secretary, Education Department, Government of Bihar respondent No. 2). The petitioner's case is that he has been appointed Assistant Headmaster of the said school with effect from the 1st of April, 1966. The school was nationalised on 2.10.1980. The Headmaster of the school retired on 31.1.1984. In usual course the petitioner being the Assistant Headmaster and the senior -most teacher automatically becomes the acting Headmaster of the said school. The authorities would thereafter have to consider the case of the petitioner for promotion on the post of Headmaster of the school. The transfer of respondent No. 4 as Headmaster in the vacancy caused on the retirement of the Headmaster jeopardising the petitioner's prospect of promotion is said to be illegal, ultra vires mala fide and without jurisdiction.

(2.) Mr. Rajendra Prasad Singh appearing for the petitioner contended that the impugned order of transfer has been made by the State Government which has no power to do so in view of rule 12 and rule 6(3) of the Bihar Nationalised High Schools (Service Condition Rules 1983. He further submitted that the impugned transfer of respondent No. 4 is not a routine transfer but an accommodative one to the detriment of the petitioner, who is an Assistant Headmaster, and in due course would have become the Headmaster of the school, He further contended that there is no guideline" of transfer in the 1983 Rules nor any principle therefor has been laid down. As Such, the rule relating -to transfer is ultra vires. Lastly, learned counsel submitted that on the 2nd July, 1983, after the Rules were made on the 9th of June, 1983, the Government issued a Circular suspending all transfers till the cadre is finalised. Therefore also the impugned order of transfer of respondent No. 4 to the petitioner's school is bad in law.

(3.) Annexure 1 states that on the request of respondent No. 4 and at the instance of the State Government respondent No. 4 is transferred to the vacant post of Headmaster in the concerned school. The order has been passed by Mr. K.N. Mishra, who is Director of Secondary Education -Cum -Additional Secretary, Government of Bihar. The learned counsel's submission is that even though the order has been passed by the Director of Secondary Education, who is the controlling officer of Headmasters, he has not acted at his own instance but at the instance of the State Government. He has, therefore, abdicated his statutory functions in favour of a superior authority and hence the order is null and void. He relies on the case of The Purtabpur Company Ltd. v/s. Cane Commissioner of Bihar and others ( : A.I.R. 1970 SC 1896) and the case of Commissioner of Police, Bombay v/s. Gordhandas Bhanji ( : A.I.R. 1952 SC 16).