IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1013 of 2009 RADHA KUMARI, WIFE OF SRI MAHESH PASWAN, RESIDENT OF VILLAGE – NEKPUR, P.O. NEKPUR, P.S. – CHHABILAPUR, DISTRICT – NALANDA. …………. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PANCHAYAT AND COMMUNITY DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 3. DISTRICT MAGISTRATE, NALANDA AT BIHAR SHARIF 4. DISTRICT SUPERINTENDENT OF EUDCATION, NALANDA AT BIHAR SHARIF. 5. BLOCK EDUCATION EXTENSION OFFICER, RAJGIR, NALANDA. 6. MUKHIYA, PILKHI GRAM PANCHAYAT, RAJGIR, NALANDA. ………….. RESPONDENTS. ----------- 05/ 24.06.2011 Head counsels for the petitioner and the State. Two orders have been challenged by the petitioner, whereby she has been transferred from Primary School, Nepur to Primary School, Pilkhi. The impugned orders are (i) order contained in Memo No. 630 dated 20.11.2008 issued by the Block Education Extension Officer, Rajgir and (ii) order contained in Memo No. 05 dated 11.11.2008 issued by the Mukhiya of Gram Panchayat Raj, Pilkhi. Petitioner was appointed as trained teacher and posted at Primary School, Nepur. Headmistress of Primary School, Nepur retired and the petitioner being senior most trained teacher was directed by the D.S.E., Nalanda vide letter No. 174 dated 4.2.2008 to 2 discharge the duties of Headmistress. Another letter No. 590 dated 6.2.2008 was issued by the D.S.E., Nalanda affirming the earlier order regarding discharge of duties as Incharge Headmistress of the School by the petitioner. However, Mukhiya of the School was interested in some other teacher for discharging the duties of Headmistress as such he managed to get issued an order by the Block Education Extension Officer transferring the petitioner from Primary School, Nepur to Primary School, Pilkhi. Both the impugned orders have been challenged by the petitioner on the ground that in violation of Rule 13 of Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006 petitioner has been transferred. The post of a Panchayat teacher is non-transferable unless they have completed three years of their service. During entire service career of the Panchayat teacher only on three occasions they could be transferred, otherwise the post is non-transferable. So far petitioner is concerned, she had not completed three years of her 3 service, as such could not transferred. Another reason for challenging the transfer order by the petitioner is that being senior most trained teacher she was made Incharge Headmistress of the School. The trained teacher is deemed to be senior to untrained teacher. In case there was any need for teacher in another School, teachers junior to the petitioner, who had completed three years of their service could have been adjusted in another School. The District Superintendent of Education has filed counter affidavit admitting that as provided under Rule 13 petitioner could not have been transferred within three years of her service. However, it has been stated that the impugned order was not a transfer order, but petitioner was simply adjusted in another School due to scarcity of teacher in Primary School, Pilkhi. It has also been stated that at present petitioner is neither working at Primary School, Pilkhi nor at Primary School, Nepur. On account of stay at present she is not working at any of the place. Counsel for the petitioner submits that this 4 letter has been issued at the instance of Mukhiya purposely to frustrate the petitioner’s case, he was instrumental in issuing transfer order against the petitioner to accommodate teacher of his choice as Incharge Headmistress. The reality is that on account of stay order passed in favour of the petitioner she is continuing in the Primary School, Nepur as Incharge Headmistress. Considering that rule prohibits transfer of a trained panchayat teacher during three years of her appointment, the petitioner could not have been transferred to any School, even in the name of adjustment. In the garb of adjustment it was a transfer order, which is under challenge. Petitioner has annexed an order passed by the LPA Bench where it has been held that transfer orders issued in violation of Rule 13 are illegal and deemed to be quashed. Accordingly, the impugned orders of transfer contained in Memo No. 630 dated 20.11.2008 issued by the Block Education Extension Officer and letter dated 11.11.2008 issued under the signature of Mukhiya contained in Memo No. 5 are quashed. This 5 application is allowed. Petitioner will continue at the same place where she was posted after her appointment as Panchayat teacher. DKS/ (Mridula Mishra, J.)