IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.577 of 2008 SANTOSH KUMAR & ORS Versus THE STATE OF BIHAR & ORS ----------- For the appellants: Mr. Pramod Kumar For the respondents : Mr. P.K.Verma, AAG - XI --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 12th September, 2008 Letters patent appeal is admitted and heard finally at this stage. 2. The appellants are unsuccessful petitioners. They challenged the order dated 12th January, 2008 passed by the District Superintendent of Education, Nalanda at Biharsharif, whereby they have been sent on deputation from Nalanda Middle School, Salempur, Biharsharif , Nalanda to Residential Model Middle School, Bhaisasur, Biharsharif. 3. The challenge to the order is, principally, founded on the ground that effectively they have been transferred from one place to other which is not permissible under Rule 13 of the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules, 2006. An additional challenge is based on competence of District Superintendent of Education, Nalanda in issuing such order. 4. No reply affidavit was filed by the respondent in 2 opposition to the writ petition. 5. The single judge held that the provisions contained in Rule 13 were mandatory and since the order of transfer does not entail any loss of status or pay, the order dated 12th January, 2008 was not illegal. 6. When the appeal came up before us on 20th August, 2008, Mr. P.K.Verma, Additional Advocate General – XI appeared on that date and he prayed for time for filing affidavit in opposition to the appeal since no counter affidavit was filed to the writ petition. 7. Despite the time of three weeks having been given, no affidavit in opposition has been filed. Mr. P.K. Verma submits that he had sent two communications to the concerned authority but no instruction has been received by him. 8. Upon perusal of the order dated 1st July, 2008, impugned in the appeal, we find that two reasons weighed with the single judge, namely, (one) that Rule 13 of Rules 2006 was not mandatory and (two) that an order of transfer is an incident of service and since the transfer order has not entailed any loss of status or pay to the petitioner, the order was not bad. 9. Rule 13 reads thus: “13- LFkkukUrj.k – (i) uxj izkjfEHkd f’k{kd dk in vLFkkukUrj.k gksxk / ijUrq uxj f’k{kd (izf’kf{kr ) dks viuh lsok dky esa rhu o.ksa ds ckn vf/kdre nks LFkkukUrj.k ysus dh lqfo/kk jgsxh / (ii) ;fn fdlh fo/kky; ds ,d fjDr in gsrq ,d ls vf/kd LFkkukUrj.k ds vkosnu izkIr gksrs gSa, rks vuqlwph II ds vojksgh dze esa f’k{kdksa dks izkFkkfedrk nh tk;sxh vkSj bl 3 izdkj ds LFkkukUrj.k dh dkjZokbZ dzfMdk 9(vii) esa xfBr lfefr ds }kjk dh tk;sxh / 10. The said Rule provides that the post of Panchayat Primary Teacher is non-transferable. However, it carves out an exception permitting Panchayat Teacher (trained) to opt maximum two transfer in the entire service tenure after completion of three years of service. In clause (ii) of Rule 13, a procedure is provided where for one vacant post in the school, more than one application of transfer are received. 11. Since there is an exception in Clause (i) of Rule 13, it cannot be said that the provision contained therein is mandatory in absolute terms. However, the provision is very categorical that the post of Panchayat Primary Teacher is non-transferable and the only exception provided is that a Trained Panchayat Teacher may during his service tenure seek two transfer on completion of three years of service. 12. That the appellants have not completed three years of service is not in dispute. That the appellants have not sought for any transfer is also not in dispute. As a matter of fact, they could not have applied since they have not completed three years of service. Rule 13 does not empower the authority to transfer a Panchayat Primary Teacher unilaterally since the post is non-transferable. 13. The Additional Advocate General – XI sought to contend that the order dated 12th January, 2008 is not an order of transfer but it is an order sending the appellants on deputation. 4 14. We are afraid, the nomenclature cannot decide the true nature of the order. Although the expression ‘deputation’ has been used, in fact, what is sought to be done is to transfer the appellants from one school to the other, which , in our considered view, is impermissible as it has been done unilaterally without the consent of the appellants and, moreover, they have not completed three years of service. 15. It is true that transfer is an incident of service and not its condition but where the transfer is regulated by a statutory provision, by applying general principle that transfer is an incident of service, an illegal order of transfer cannot be justifiably countenanced. 16. In what we have observed above, we find that the order of the single judge is unsustainable and liable to be set aside. 17. The order dated 12th January, 2008 passed by the District Superintendent of Education suffers from serious legal flaw and has to be set aside. 18. Consequently, letters patent appeal is allowed and the order of the single judge dated 1st July, 2008 is quashed and set aside. The order passed by the District Superintendent of Education dated 12th January, 2008 is also quashed and set aside. No order as to cost. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/ 5