IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.431 of 2010 Ramavtar Goswami S/O Late Yadu Nandan Goswami R/O Village + P.S.- Rajgir, Distt.- Nalanda …………. Petitioner Versus 1. The State Of Bihar 2. The Director, Primary Education Govt. Of Bihar, Patna 3. The District Magistrate Nalanda At Bihar Sharif 4. The Deputy Development Commissioner Nalanda At Bihar Sharif 5. The District Education Officer – Cum – Chairman Distt. Education (Establishment), Nalanda At Bihar Sharif 6. The District Superintendent Of Education Nalanda 7. Md. Shaukar Jafree @ Md. Nanhe Mian S/O Jahiruddin R/O Vill.- Jhalar, P.S.- Rajgir, Distt.- Nalanda 8. The Block Education Extension Officer Rajgir At Nalanda ……………. Respondents ---------------------------------- For the Petitioner : M/s Amresh Kumar and Bijay Kumar Pandey, Adv. For the State : Mr.Indrajeet Singh, A.C. to S.C.VI. ---------------------------------- 4. 20/12/2011 In this writ application, an order of the District Superintendent of Education, Nalanda contained in memo no.5719 dated 16.12.2009 (Annexure-4) is under challenge. By the said order, in the light of letter of the Deputy Development Commissioner, Nalanda dated 16.11.2009 and after the approval of the Establishment Committee, services of the petitioner as Primary Teacher has been transferred from one School to another. Learned counsel for the petitioner 2 submits that in terms of Bihar State Primary School Teachers (Transfer) Rules, 2006, as amended by notification no.1054 dated 3.7.2009, it is only the Director Primary Education, who can order for transfer of an Assistant Teacher on administrative grounds on the recommendation of the District Superintendent of Education or any senior officer of the Education Department. He submits that the Deputy Development Commissioner or the Establishment Committee had no jurisdiction to order for transfer of the petitioner. A counter affidavit has been filed in this case by the respondents. Stand of the respondents is that the Deputy Development Commissioner had received some complaint from the Deputy Mukhiya of the Panchayat against the petitioner and hence on administrative grounds he had directed for transfer of the petitioner. The said letter of the Deputy Development Commissioner dated 16.11.2009 is annexed as Annexure-A with the counter affidavit. Learned counsel for the respondents has also referred to a letter of the Cabinet Secretariat Department contained 3 in Memo No.881 dated 3.6.2009, which lays down the policy of transfer. He submits that in case of any requirement of transfer on administrative grounds, any higher authority of the Department can pass orders for transfer any time during the year. After hearing learned counsel for the parties and after considering the records, this Court finds that the letter of the Cabinet Secretariat Department dated 3.6.2009 is a general order dealing with the policy of transfer and posting. However, it is not disputed that the petitioner is a teacher in a School which has been put under the control of the Panchayat now in terms of the Rules. It appears that 2006 Rules were framed by the Government in terms of Article 309 of the Constitution of India. Hence, the same will prevail upon any executive decision laying down any policy decision with regard to the transfer and posting so far as teachers of the School under the control of the Panchayats are concerned. The amendment effected in the Rules in 2009 shows that it is only the Director, Primary Education, 4 who, on the recommendation of the District Superintendent of Education or any higher authority of the Education Department can pass orders for transfer of a Headmaster or an Assistant Teacher of the School and no one else. In the circumstances, this Court finds that the order of transfer of the petitioner as passed by the Deputy Development Commissioner and communicated through the impugned order by the District Superintendent of Education is without jurisdiction. The same is accordingly quashed and the writ application is allowed. Learned counsel for the petitioner submits that due to non-compliance of the said order of transfer, petitioner was put under suspension by order of the District Superintendent of Education contained in Memo No.303 dated 16.1.2010. From the orders passed in this case on 2.2.2010 it appears that the I.A. of the petitioner was allowed and operations of both the impugned orders i.e. transfer order and the suspension order were stayed. Since the writ application is allowed 5 and the order of transfer of the petitioner is quashed, the order of suspension, as contained in Annexure-5 with the I.A. is also quashed. Pradeep/ ( J. N. Singh,J.)