IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12416 of 2010 1. MUMTAZ AHMAD KHAN S/O ABDUL MANNAN KHAN R/O MOHALLA- ALIGANJ, ROAD NO.19, P.S.- CHANDAULI, DISTT.- GAYA. 2. MD. IMTEYAJ KHAN S/O LATE G.M. NABI KHAN R/O MOHALLA- GEWAL BIGHA, P.S.- RAMPUR, DISTT.- GAYA. 3. PUSHPA KUMARI W/O YOGENDRA NARAYAN LAL R/O MOHALLA- HOUSING BOARD COLONY, ANUGRAHPURI, L- 71, P.S.- RAMPUR, DISTT.- GAYA. 4. KUMARI KUSUM SHARMA W/O UMESH SHARMA R/O MOHALLA- MAGADH COLONY, IN FRONT OF VILASH HOTEL, CHANDAULI MORE, P.S.- CHANDAULI, DISTT.- GAYA. 5. SITA KUMARI W/O SHRI ARUN KUMAR R/O MOHALLA- MAA MANGLA CO-OPERATIVE COLONY, P.S.- CIVIL LINES, DISTT.- GAYA. 6. ARVIND KUMAR S/O NITYANAND PRASAD R/O MOHALLA- RAJ KUMAR NAGAR, GHUGHRI TARN, P.S.- CIVIL LINES, DISTT.- GAYA. 7. ARUN SINGHA S/O YASHWANT PRASAD R/O MOHALLA- DANDIBAGH, P.S.- CIVIL LINES, DISTT.- GAYA. 8. SHANTI DEVI W/O RAMCHANDRA KEWAT R/O MOHALLA- DANDIBAG, P.S.- CIVIL LINES, DISTT.- GAYA. 9. PRIYABANDA DEVI W/O RAMESHWAR SINGH R/O MOHALLA- NANDRAJ BIGHA, CHHOTKI DELHA, P.S.- DELHA, DISTT.- GAYA. 10. SATYA PRAKASH S/O BAIJNATH SINGH R/O MOHALLA- GEWAL BIGHA POLICE LINE, P.S.- RAMPUR, DISTT.- GAYA. 11. UMA DEVI W/O RAJENDRA PRASAD R/O CHANDCHAURA, LATTU BAGICHA, P.S.- CIVIL LINES, DISTT.- GAYA. 12. PUSPA SHARMA W/O PRAVEEN KUMAR R/O VILL.- MOHALLA- MAGADH COLONY, P.S.- MEDICAL, DISTT.- GAYA. 13. KUMARI NEELAM D/O SHRI DASHRATH PRASAD R/O VILL.- PANCHDEVRA, P.S.- SAIYAD RAJA, DISTT.- CHANDAULI (U.P.). 14. SUDHA DEVI W/O SHIV KISHORE PD. SINGH R/O MOHALLA- ALIGANJ IN FRONT OF ROAD NO.9, P.S.- CHANDAULI, DISTT.- GAYA. 15. RAMESH KUMAR S/O DEVNANDAN PRASAD R/O VILL.- GURIYA, P.S.- IMAMGANJ, DISTT.- GAYA. 16. SHEELA KUMARI S/O RAMESH KUMAR SINHA R/O MOHALLA-3, ANUGRAH ROAD, MURARPUR, P.S.- KOTWALI, DISTT.- GAYA. 17. MARGREAT SAIMUEL S/O PRADEEP KUMAR MARGAL R/O MOHALLA- ANUGRAHPURI COLONY, QUARTER NO.116, P.S.- RAMPUR, DISTT.- GAYA. 2 18. SARITA SINGHA W/O ARVIND ROOKHIYAR R/O MOHALLA- JAIL ROAD, IN FRONT OF RAMPUR, P.S.- RAMPUR, DISTT.- GAYA. 19. PRABHAWATI KUMARI W/O SUSHIL KUMAR SINGHA R/O VILL.- KUJAPEE, P.S.- CHANDAULI, DISTT.- GAYA. 20. ASHA KUMARI W/O JAY SINGH YADAV R/O MOHALLA- CHHOTKI DELHA, TIKARI ROAD, P.S.- DELHA, DISTT.- GAYA. 21. JITENDRA KUMAR S/O ARJUN MISHRA R/O MOHALLA- SHASTRI NAGAR, WEST ROAD NO. 04, P.S.- RAMPUR, DISTT.- GAYA. 22. DR. NARENDRA DEV S/O SHYAM SUNDER SHARMA R/O MOHALLA- VATRAWAN, NIVAS ASHOK NAGAR, A.P. COLONY, P.S. RAMPUR, GAYA. 23. SUSHMA KUMARI W/O LATE NAND KISHORE PD. SRIVASTAV R/O VILL.- GHUGHRI TARN, BODH GAYA ROAD, P.S.- CIVIL LINES, GAYA. 24. PULINDRA S/O LATE SARWAN SINGH R/O VILL.- PATHRA, P.S.- MAKHDUMPUR, DISTT.- JEHANABAD. 25. DR. HEMLATA BHAGAT W/O DR. ASHOK BHAGAT R/O MOHALLA AND P.S. + DISTT.- GAYA. 26. MEENA KUMARI SINGH W/O PRAKASH KUMAR R/O MOHALLA- NEW GODAM PAULI LANE, RAJENDRA PATH, P.S.- KOTWALI, DISTT.- GAYA. 27. SHASHI SINGH S/O MOHAN PRASAD R/O MOHALLA- ASHOK NAGAR, HOUSE NO. 84A, P.S.- RAMPUR, DISTT.- GAYA. 28. MD. AFFAQ NADEEM S/O NAYIMUR RAHMAN R/O MOHALLA- GEWAL BIGHA, BACK OF MUNNI MASJID, P.S. RAMPUR, DISTT.- GAYA. 29. NOKHAT PARVEEN W/O MOYIJOOR RAHMAN R/O MOHALLA- YASIN COLONY, BARI ROAD, P.S.- KOTWALI, DISTT.- GAYA. 30. AJEEJOOR RAHMAN S/O JYAOOR RAHMAN R/O MOHALLA- DURGABARI, P.S.- CIVIL LINE, DISTT.- GAYA. 31. MAMTA PAL W/O PRASHANT KUMAR R/O MOHALLA- PROFESSOR COLONY, P.S. RAMPUR, DISTT.- GAYA. 32. SATISH CHANDRA VERMA S/O SUBHASH CHANDRA VERMA R/O MOHALLA- JANAKPUR, P.S.- MUFFASIL, DISTT.- GAYA. 33. NIRMALA DEVI W/O CHANDRA BHUSHAN PRASAD R/O MOHALLA- KUSHWAHA COLONY, RAJENDRA ASHRAM, P.S.- CIVIL LINES, DISTT.- GAYA. 34. NOOTAN SHARAN W/O SHEKHAR PRASAD R/O MOHALLA- PROFESSOR COLONY, NEAR OF SAI MANDIR WEST CHURCH ROAD, P.S. RAMPUR, DISTT.- GAYA. 35. MD. MANAZIR HUSAIN S/O LATE ANWAR HUSSAIN R/O MOHALLA- BHAGMATIA COLONY, ROAD NO.9, P.S. CIVIL LINES, DISTT.- GAYA. --------------------Petitioners 3 Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR , PRIMARY EDUCATION, BIHAR, PATNA. 2. THE COMMISSIONER, MAGADH DIVISION, GAYA. 3. THE DISTRICT MAGISTRATE, GAYA. 4. THE DEPUTY DEVELOPMENT COMMISSIONER, GAYA. 5. THE DISTRICT EDUCATION OFFICER, GAYA. 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. ----------------Respondents. ------------------------------ 4. 29.10.2010 A counter affidavit has been filed. Heard the parties. Petitioners were initially recruited as Assistant Teachers in the Matric Trained Scale and were posed in different Government Schools in the District of Gaya. Having obtained Graduate trained status they were due for promotion. Their promotions are Governed by the Bihar Primary Teachers Promotions Rules, 1993. Once promoted to Graduate Trained Scale their pay scale also substantially changes. The impugned order is in two parts. First they are promoted to Graduate Trained Scale and second they are transferred from Primary School to Middle School. They challenge the later part of the order, that is, transfer from Primary School to Middle School. The challenge is based upon the provisions of the Bihar State Nationalized Primary Schools Teachers (Transfer) Rules, 2006. These rules, by virtue of Rule 3 inter alia provides 4 that teachers post would be non transferable except on self violation, that is, either on mutual transfer, on the basis of the employees himself seeking it or transfer on the request of the employee. Thus transfer by the employer is no more contemplated. This Court had notice the problem that has arisen. By order dated 20.9.2010 it directed Director Primary Education to consider the matter at the first instance in terms of Rule 9 (1) of the 2006, Rules which are statutory provisions enabling the State Government to pass necessary orders in cases of difficulty. In the supplementary counter affidavit the order of the Director Primary Education Government of Bihar, Patna dated 26.10.2010 has been annexed. This clears the position in my view. The Director has rightly pointed out, in fact, to this Court, that it is not transfer in the regular sense but it is transfer as a consequence of promotion. Having examined the matter, in my view the State is correct in its stand. It is the correct position that so long as petitioners were Matric trained their place was in the Primary School where the teaching posts are of Matric Trained Teachers. So far as Middle School and Secondly School are concerned, there the posts are for Graduate Trained 5 Teachers who are either recruited directly as graduate trained or repromoted to that scale. Thus the number of posts available for Graduate Trained Teachers in Primary School being very limited, as a consequence of promotion and change of pay scale, the Petitioners had to be adjusted as against Graduate Trained Teachers posted in Middle School. That is what has been done. No exception can be made to it. In this matter, I find no merit in this writ application, it is accordingly dismissed. Anand Kr. ( Navaniti Prasad Singh, J.)