IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9385 of 2010 PANKAJ KUMAR S/O SHRAWAN KUMAR R/O VILL.- SIRDILPUR, P.O. + P.S.- PATORI, DIST.- SAMASTIPUR, AT PRESENT POSTED AS ASSISTANT TEACHER CUM INCHARGE HEADMASTER, MIDDLE SCHOOL, USARAHA, BLOCK- PATORI, DISTT.- SAMASTIPUR. VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, SAMASTIPUR . 4. THE DISTRICT EDUCATION OFFICER SAMASTIPUR. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, SAMASTIPUR. 6. THE BLOCK EDUCATION OFFICER, PATORY. ----------- Counsel for the Petitioner : Mr. Rajendra Prasad Singh, Sr. Adv. Mr. Rajeev Kumar Singh, Adv. Mr. Nawal Kishore Singh, Adv. Counsel for the State : Mr. Rajendra Kumar Jha, AC to SC-VII. ------------ 03 19.11.2010 The petitioner was the Incharge Headmaster of Kasturba Gandhi Balika Vidyalaya, Usraha, Samastipur. He challenges his transfer order. At the request of the District Magistrate, which was forwarded by the District Superintendent of Education, Samastipur, the Director, Primary Education, Government of Bihar, Patna by the impugned order, as contained in Memo No.175(Ya) dated 25.03.2010, approved the transfer of petitioner to some other school. A counter affidavit has been filed in which it is stated that the transfer was made on administrative grounds. Mr. Rajendra Prasad Singh, learned Senior Counsel - 2 - appearing in support of the writ petition submits that in view of Nationalised Primary School Teachers and Headmasters Transfer Rules, 2006, as issued by the State Government, under proviso to Article-309 of the Constitution the post of Headmaster and Teachers are non-transferable. My attention is drawn to the definition of Teacher, as contained in Rule-2(iv), which defines a Teacher to include a Headmaster. Rule-3 clearly stipulates that the post of Teachers would be non-transferable. A reference to further provision to Rule-3 would show that now transfer can only be effected at the request of the Teacher concerned and, that too, twice in a career. Thus, the Rule that transfer is an incidence of service no more applies and has been statutorily negated. Now, so far as Headmasters and Teachers are concerned, they are non-transferable except upon their own volition. Having perused the provision, as enumerated above, the submission is correct and has to be accepted. It is evident that the State by framing statutory Rules has restricted the power to transfer to only in contingency as mentioned in Rule-3. It is well established principle of law that once a procedure is prescribed to do a certain act then it is that procedure that has to be followed and all other manner of exercise of power for that purpose is impliedly prohibited. I may refer to expression unius est exclusion, which is exemplified in the case of Hukum Chand Shyam Lal Versus Union of India since reported in AIR 1976 Supreme Court 789 and in particular paragraph- 18 thereof, their Lordships held thus:- - 3 - “It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden……” In that view of the matter, I have no option but to quash the order of transfer of the petitioner and restrain the respondents from interfering in the matter. The writ petition is, accordingly, allowed. Trivedi/ (Navaniti Prasad Singh, J.)