MOHD. SADIQ Vs. STATE AND ORS.

JUDGEMENT

(1.) In furtherance of an endeavour to be positioned as Incharge Deputy Chief Education Officer, Mendhar (Poonch), the petitioner Incharge Principal Govt. Higher Secondary School, Mankote (Mendhar) has set out a challenge to the order of modification introduced to the general order of transfer on the ground that it is not within the competence of the Government to modify the order of transfer if already implemented. The challenge needs to be appreciated in the factual background that the petitioner Incharge Principal Govt. Higher Secondary School Mankote (Mendhar) was transferred and posted as Incharge Deputy Chief Education Officer, Mendhar (Poonch) by Govt. Order bearing No.504 of 2009 dated 18.06.2009 which came to be modified vide Order No.525-Edu of 2009 dated 24.06.2009 having the effect of continuance of the petitioner as Incharge Deputy Chief Education Officer, Mendhar (Poonch) and respondent-5 as Incharge Principal Higher Secondary School, Mankote (Mendhar). To bring home the point, reliance is placed by Mr. Chouhan on Mahmood Azam Siddique v. State of Bihar and others, 2000 LABIC 655. Relying upon rules 51 and 56 of the Bihar Service Code, it was held that order of transfer once implemented, could not be modified but with respects I don't subscribe to the view for the reasons detailed hereinafter. He has also referred to the judgment titled Rameshwar Pandey v. Addl. Director (All.), 1996 3 SLR 113 but reliance is misplaced because this judgment has conceded to the power of modification of the order of transfer to the competent authority. On the basis of the judgments supra, emphasis was laid by him on Annexures-B and D to the writ petition, the two communications one hand written on the letter head of Govt. Higher Secondary School Mankote (Mendhar) dated 19.06.2009 and the other typed one styling both to be the relieving orders. It is not understandable why two relieving orders. If the petitioner had relieved the respondent-5 on 19.06.2009 why again on 20.06.2009. Be that as it may contention is controverted by Mr. Sethi on the strength of communications of the Chief Education Officer, Poonch dated 20.06.2009 and 29.06.2009 showing that the respondent-5 was in position of the post of the Dy. Chief Education Officer even on 30.06.2009. A copy of attendance register is also brought on record. Going by the communications of the Chief Education Officer, Poonch, it emerges that the order of transfer was not given effect, therefore, judgmentis inapplicable to the facts of this case. For another reason also that is absence of rules 51 and 56 of Bihar Service Code on our statute.

(2.) 1 would now like to examine the contention on the touchstone of rules those govern the controversy on hand and advantageous it is to refer to article 39 of the Civil Service Regulations which reads:

(3.) A plain reading of the extracted article reveals that handing over and taking over of the charge of an office by the relieving and relieved officers can alone amount to relieving under article 39 with an exception empowering the authority under whose orders, the transfer takes place to direct otherwise and in all fairness. Mr. Chouhan has admitted that there was no direction passed to the contrary commanding the petitioner and the respondent-5 not to handover and take over the charge in accordance with article 39. Analyzing rival contentions about implementation of the order, it is crystal clear that the basic order of transfer was neither implemented in law nor on facts.