IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.4615 OF 2007 KRISHNA MURARI MISHRA, S/O LATE VISWANATH MISRA, R/O VILLAGE BANUA, P.S MINAPUR, DISTRICT MUZAFFARPUR, AT PRESENT ASSISTANT TEACHER, RAJKIYA KRIT, NATHUNI BHAGAT HIGH SCHOOL, MUZAFFARPUR. …………………PETITIONER. VERSUS THE STATE OF BIHAR THROUGH COMMISSIONER- CUM-SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR,(SECONDARY EDUCATION). 2.DIRECTOR SECONDARY EDUCATION CUM JOINT SECRETARY, BIHAR SECONDARY EDUCATION OFFICE, BUDHA MARG PARTNA. 3.REGIONAL DEPUTY DIRECTOR OF EDUCATION, TIRHUT DIVISION, MUZAFFARPUR. 4.THE DISTRICT EDUCATION OFFICER, MUZAFFARPUR. 5.HEADMASTER, RAJKIYA KRIT NATHUNI BHAGAT HIGH SCHOOL, MUZAFFARPUR. ………………………RESPONDENTS. ----------- 03/ 25.08.2011 Heard counsel for the parties. Initially when this writ application was filed on 10.04.2007, the prayer of the petitioner in this writ application had read as follows:- “That this is an application for issuance of a writ in the nature of certiorari for quashing the part of the order issued vide Memo No. 668 dated 20.05.1992 under the signature of respondent no. 2 under which it has been mentioned as that the seniority of the petitioner shall be counted from the date of his joining in the new division and no traveling allowance shall be given of any kind, further for issuance of a writ in the nature of mandamus directing the respondents to treat the seniority of the petitioner from the date of his appointment and further for issuance of an appropriate order/direction directing the respondents to place the petitioner at the appropriate place in the gradation list concerned on the basis of his 2 joining that is 15.10.86 and also to place the name of the petitioner in all the concerned documents/register which is required to be maintained of the teacher in order of seniority in accordance with law and further also be pleased to direct the respondents to make the payment of the allowances as admissible under the law for the transfer of the concerned teacher from the one place to another place.” As would be manifest from the aforementioned prayer, the petitioner had sought to assail the conditions imposed in his transfer order dated 20.05.1992 after expiry of a period of almost 15 years inasmuch this writ petition was filed on 10.4.2007. It has been however sought to be explained by the learned counsel for the petitioner that there has been fresh cause of action for the petitioner to raise that issue of 1992 inasmuch as a fresh seniority list was issued on 19.05.2010 for promotion on the post of Headmaster. In the considered opinion of this Court, such plea of the petitioner as advanced by the learned counsel for the petitioner has to be only noted for its being rejected. The petitioner happily enjoyed the benefit of transfer which had imposed the condition that he will not get seniority on account of the transfer. Such 3 conditions are imposed only when a person seeks transfer on his own volition. Counsel for the petitioner submits that he had never given made such request and infact the condition was wrongly imposed in his transfer order. This Court find it difficult to accept the same inasmuch as if that was so the petitioner had to assail the order of transfer dated 20.05.1992 or could have atleast conveyed to the Competent Authority that he had never opted for such transfer. He having happily availed the benefit of the part of the order of transfer to the place of his choice, cannot subsequently turn around to assail the terms and conditions of the transfer which had categorically mentioned that his earlier seniority, on account of his request transfer, will not be counted in the new divisional cadre. The plea of issuance of a fresh gradation list on 19.05.2010 would also be of no avail much less give a new cause of action to the petitioner because his seniority has been fixed on the basis of terms and conditions incorporated in the transfer order dated 20.5.1992. Thus in 4 process of assailing the seniority list dated 19.5.2010 the petitioner cannot be allowed to assail the terms and conditions of the order of transfer dated 20.05.1992, inasmuch as, the seniority having been prepared in the terms of the aforementioned order has become a fate accompli and therefore, he could not have been included in the fresh gradation list. Since, the petitioner has also made a prayer for direction to the respondents to include the name of the petitioner in gradation list issued on 19.05.2010 by filing I.A No. 6668 of 2010, this Court would hold that in view of the conditions imposed in the order of transfer dated 20.5.1992 taking away the benefit of his earlier seniority, he would not be entitled to get the benefit of his past services, for being promoted on the post of Headmaster. It however, goes without saying that if the petitioner continues to be in the cadre of teachers of the nationalized high School as has been claimed by him on account of subsequent posting in Rajkriyakrit Nathuni Bhagat High School, 5 Muzaffarpur, the respondents may consider to place the petitioner on an appropriate position on the basis of the terms and conditions imposed in the order of his transfer dated 20.05.1992. It is to be noted that the petitioner, in fact, again was transferred from the place of his earlier posting in the same division which would itself go to show that he was rather too willing to remain in the same division instead of reverting back to his old Saran Division. The seniority of the teachers being maintained at the divisional level under statutory 1993 Seva Shart Niyamavali the place of the petitioner would therefore, be in Tirhut Division only from the date he had been posted afresh in the Tirhut Division i.e. 20.05.1992. His earlier seniority of Saran Division will therefore not be taken into account while fixing his place in the seniority list dated 19.5.2010. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)