IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6836 of 2010 1. KRISHNA NAND GUPTA S/O SRI NATHAN SAH R/O VILL.- BASUDEOPUR, P.O.- BARHARA, P.S.- BARHARA KOTHI, DISTT.- PURNIA, AT PRESENT POSTED AS HEADMASTER IN ADARSH MIDDLE SCHOOL, MAGURJAN, BARHARA KOTHI ANCHAL, DISTT.- PURNIA Versus 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. DEPUTY DEVELOPMENT COMMISSIONER PURNIA, DISTT.- PURNIA 4. DISTRICT EDUCATION OFFICER, PURNIA, DISTT.- PURNIA 5. DISTRICT SUPERINTENDENT OF EDUCATION PURNIA, DISTT.- PURNIA 6. AREA EDUCATION OFFICER BANMANKHI, PURNIA, DISTT.- PURNIA ----------- For the petitioners: - M/S. Sharda Nand Mishra, Dhananjay Kumar Gupta and Viveka Nand Jha. For the State: Mr. Rakesh Prabhat, AC to GP – 19. ------ 03. 31.03.2011 Petitioner is a teacher. He claims a right for transfer on the basis of option exercised by him as the relevant rule governing the petitioner allows such a transfer under Rule-3 and a copy of the Rule has been annexed as Annexure-1 to the writ application. His case is that the respondents are not considering his case for transfer despite request made by him. One such request is Annexure-3 dated 24.12.2008. The pleading in the writ application is that on earlier occasion though an order of transfer in favour of the petitioner was passed, but since the petitioner was not permitted to join the school at Dhokar Dhara (Banmankhi) despite being relieved from the place of posting, he had no option but to report back and the order of transfer had no meaning. In support of such a position 2 petitioner has annexed Annexure-4, which is the so-called letter of the Area Education Officer, Banmankhi dated 24.12.2008. The stand of the State in the counter affidavit is that it is not a case that the respondents did not consider the request of the petitioner for a choice transfer. Petitioner was transferred but since he did not avail of such a transfer order, therefore, it was decided as a matter of policy that all such teachers who were earlier transferred but did not join the place of their transfer, would not be permitted to opt for a second request for transfer before completion of 5 years. Since in the case of the petitioner the said 5 years has not elapsed there is no occasion again for the respondents to consider his request for transfer so soon. It is also urged on behalf of the State that there is no clear indication that the petitioner was prevented from joining the place of his positing and whether it was not stage-managed by the petitioner himself for what ever be the reasons. If that be the background then the claim of the petitioner is not bonafide. Petitioner has brought on record an official communication dated 24.12.2008 (Annexure-4). If circumstances of such kind did exist at the relevant time, which prevented the petitioner from joining the place of his transfer, then it can not be said that the petitioner voluntarily did not 3 accept the order of transfer and he should be barred from making such a request at least for 5 years. But if the records and the said letter are not available to establish the bonafide of the petitioner on this score, then there could be some problem for the petitioner in the sense that he will have to wait for the period of 5 years to expire before this request can be entertained. However, it is clarified that if what has been stated by the petitioner of his being prevented from joining the place of transfer is correct then his earlier transfer will not come in his way of his request to be considered afresh, as he cannot be punished for a conduct which was beyond his control. In this regard, the Court directs the District Superintendent of Education to look into matter and communicate the final decision to the petitioner preferably within three months from the date of production of a copy of this order. The writ application stands disposed of with above direction. rkp ( Ajay Kumar Tripathi, J.)