IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11152 of 2010 MAHAKANT KUMAR S/O LATE MAHESH KUMAR R/O VILL. AND P.O.- BHAINY, P.S.- BIROUL, DISTT.- DARBHANGA. VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCE DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 2. DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCE DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. DISTRICT SUPERINTENDENT OF EDUCATION, DARBHANGA 4. AREA EDUCATION OFFICER, BIROUL, DARBHANGA 5. BLOCK EDUCATION EXTENSION OFFICER, BIROUL, DISTT.- DARBHANGA ----------- For the Petitioner : Mr. Banwari Sharma, Adv. Mr. Shiv Kumar, Adv. For the State : Mr. A.K. Prasad, A.C. to G.A.-9. ------------- 03 28.10.2010 The petitioner was an Assistant Teacher in Government Primary School at Sultanpur, Kusheshwar Asthan, Darbhanga. Being an Assistant Teacher, he is governed by the Nationalized Primary School Teachers and Headmasters Transfer Rules, 2006. The said Rules contemplate that the post of teachers would be non-transferable except at the request of teacher or on the mutual transfer basis. Petitioner, accordingly, requested for transfer. The District Superintendent of Education (D.S.E.) considered the same and by order dated 06.04.2007 (Annexure-2), directed the transfer of petitioner to Middle School, Koylajan, Biroul in the district of Darbhanga. One of the conditions in the transfer order was, if a teacher is involved in any scheme executed, he would only be relieved after completed the scheme. Petitioner was involved in the some construction activity in the school and, as such, could not be relieved. As he was continuing, he sought revalidation of the transfer order, - 2 - which was duly done on 01.10.2009. Accordingly, on 05.10.2009 he sought to be relieved from his earlier school and was duly relieved on the same day i.e. 05.10.2009. He joined the Middle School, Koylajan, Biroul. It appears that one Vijay Kumar, who is also an Assistant Teacher, was working as Teacher Incharge/Acting Headmaster in the School at Biroul. By petitioner’s joining at Biroul, the said Vijay Kumar would have lost vantage position of having opportunity to take over charge as the Headmaster. Vijay Kumar had filed a writ petition before this Court being C.W.J.C. No.17247 of 2009. This writ petition was filed for a direction against another person to handover charge to him, as directed by the D.S.E., Darbhanga. During Pendency of this writ petition, petitioner was allowed to join and, as such, the said Vijay Kumar in the said writ petition challenged the propriety of placing the petitioner in that school. It may be specifically noted here that petitioner was not made party in that writ petition. Serious criticisms were made about petitioner’s conduct and an order was obtained from this Court. In this writ petition an order was passed directing the D.S.E. to examine the conduct of the present petitioner. It appears that pursuant to the said order the matter was re-examined by the D.S.E., Darbhanga and then he passed the impugned order by which petitioner is being asked to go back. Virtually, petitioner’s transfer order, which have been revalidated on 01.10.2009 and, pursuant to which petitioner had joined on 05.10.2009, this impugned order is now being passed on - 3 - 19.06.2010 (Annexure-6). The effect of this order is cancellation of the earlier order of transfer and its revalidation which had already been acted upon. Vijay Kumar, at whose instance the first writ application was filed and, who is hankering to somehow or the other kept the post of Acting Headmaster/Incharge Teacher, has filed an intervention application for being impleaded as a party-respondent. He wants to oppose the writ petition and support the action taken by the D.S.E. Even though, I have serious doubts about his locus standi to intervene in these proceedings, the intervention application has been allowed and the learned counsel for the Vijay Kumar has been heard. On behalf of the intervener-respondent, it is submitted that petitioner had not complied with the transfer order and, as such, he ought not to have been permitted to join. I am afraid that those are matters which the administration has to consider. Mr. Banwari Sharma, learned counsel appearing in support of the writ petition makes two submissions. Firstly, the order as passed in the earlier writ petition as against the present writ petitioner would not bind or would not affect the petitioner. Secondly, relying upon the judgment in the case of Mahmood Azam Siddique & Dr. Ramchandra Safi Vs. The State of Bihar & Ors. since reported in 2000(3) PLJR 139 he submits that the transfer order having been acted upon and, petitioner having already joined on 05.10.2009, the transaction ended. It would not be revisited/recalled on 19.06.2010 because it had already spent its force. - 4 - Having heard the parties, in my view, the writ petition must succeed. Firstly, I must discuss the conduct of the intervenor- respondent. As noticed above, he has been fighting tooth and nail to somehow or the other get the position of Teacher Incharge/Acting Headmaster. He got an ex parte order from this Court as against the petitioner. Obviously, it is well settled that petitioner not being a party to the writ petition, any order adverse to the petitioner would have no effect on the petitioner. Now, he has chosen again to disturb the petitioner. The only reason is that it is the only way in which he can grab the position of Acting Headmaster because, admittedly, petitioner is much senior to him would be the Incharge Headmaster till the final arrangement is made. In this connection, I may note that Rule-3 of the 2006 Transfer Rules provide for transfer only at the volition of the employee teacher. Here, petitioner had opted for the transfer. It was permitted that cannot be objected by the intervenor-respondent. If that be so, then the intervenor-respondent has no locus to oppose this writ petition in any manner. Now, coming to the aspect of the order impugned. As seen above, the transfer order was revalidated on 01.10.2009. Pursuant whereof, petitioner was relieved and he joined on 05.10.2009. Once the order was obeyed and acted upon the order cease to exist. It could neither be rescinded nor cancelled. The effect of the impugned order would be a fresh order of transfer by the employer. As noticed above, Rule-3 of the 2006 Rules clearly prohibits an order of transfer issued by the employer. As Rule-3 is an - 5 - imperative term made the position non-transferable except on volition of the teacher himself. Thus, on both counts, the transfer order having already been complied with and acted upon, it ceases to exist and could not be rescinded on the ground that if the effect of the impugned order is a fresh transfer order at the instance of the employer, the same is impermissible in law. The impugned order cannot sustain and it is accordingly quashed. The writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)