IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.594 of 2011 GIRIJA NAND PATHAK, Son of Late Shibanand Pathak, resident of village Ahorahi Gobindpur, P.S. Barahara Kothi, District Purnea at present posted as Assistant Teacher Middle School Sukshena, Bikhoti, Purnea. ---- Petitioner Versus 1. THE STATE OF BIHAR through its Special Secretary-cum-Commissioner, Human Resources Development Department, Bihar, Patna. 2. The Director, Primary Education Human Resources Development Department, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Purnea. 4. The District Education Establishment Committee, Purnea through its Chairman. 5. The District Superintendent of Education, Purnea. 6. The Treasury Officer, Purnea. 7. The Area Education Officer, Banmankhi, Purnea. 8. The Block Education Officer Braharakothi, Purnea. ---- Respondents with CWJC No.891 of 2011 CHANDRA K ISHORE YADAV, Son of Sri Nabilal Yadav, resident of village Banmankhi Rajghat, P.S. Banmankhi, District Purnea at present posted as Headmaster Primary School Nipania Santhal tola, Dhamdaha, Purnea. ---- Petitioner Versus 1. THE STATE OF BIHAR through its Special Secretary-cum-Commissioner, Human Resources Development Department, Bihar, Patna. 2. The Director, Primary Education Human Resources Development Department, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Purnea. 4. The District Education Establishment Committee, Purnea. 5. The District Superintendent of Education, Purnea. 6. The Treasury Officer, Purnea. 7. The Area Education Officer, Banmankhi, Purnea. 8. The Block Education Officer Dhamdaha, Purnea. ---- Respondents with CWJC No.916 of 2011 NAND LAL YADAV, Son of Late Khushilal Yadav, resident of Banmankhi, P.S. Banmankhi, District Purnea at present posted as Headmaster, Primary School Bishunpur Hatt, Banmankhi, Purnea. ---- Petitioner Versus 1. THE STATE OF BIHAR through its Special Secretary-cum-Commissioner, Human Resources Development Department, Bihar, Patna. 2. The Director, Primary Education Human Resources Development Department, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Purnea. 4. The District Education Establishment Committee, Purnea. 5. The District Superintendent of Education, Purnea. 6. The Treasury Officer, Purnea. 7. The Area Education Officer, Banmankhi, Purnea. 8. The Block Education Officer Banmankhi, Purnea. ---- Respondents 2 with CWJC No.943 of 2011 RAJ KISHORE BHAGAT, Son of Shri Gonar Prasad Bhagat, resident of village Brahara Kothi, P.S. Brahara Kothi, District Purnea, at present posted as Assistant Teacher Girls Middle School Brahari, P.S. Brahara Kothi, District Purnea. --- Petitioner Versus 1. THE STATE OF BIHAR through its Special Secretary-cum-Commissioner, Human Resources Development Department, Bihar, Patna. 2. The Director, Primary Education Human Resources Development Department, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Purnea. 4. The District Education Establishment Committee through its Chairman, Purnea. 5. The District Superintendent of Education, Purnea. 6. The Treasury Officer, Purnea. 7. The Area Education Officer, Banmankhi, Purnea. 8. The Block Education Officer Brahara Kothi, Purnea. ---- Respondents with CWJC No.1516 of 2011 SMT.MANJU KUMARI, Wife of Sri Bhola Prasad Sah, resident of Banmankhi, P.S. Banmankhi, District Purnea at present posted as Assistant Teacher Pannalal Baidh Girls Middle School, Banmankhi, Purnea. --- Petitioner Versus 1. THE STATE OF BIHAR through its Special Secretary-cum-Commissioner, Human Resources Development Department, Bihar, Patna. 2. The Director, Primary Education Human Resources Development Department, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Purnea. 4. The District Education Establishment Committee, Purnea. 5. The District Superintendent of Education, Purnea. 6. The Treasury Officer, Purnea. 7. The Area Education Officer, Banmankhi, Purnea. 8. The Block Education Officer Banmankhi, Purnea. ---- Respondents with CWJC No.238 of 2011 MD.SULEMAN HUSSAIN, Son of Late Ahmad Hussain, resident of village Magurjan, P.O. Nipania, P.S. Barhara Kothi, District Purnea. --- Petitioner Versus 1. THE STATE OF BIHAR. 2. The Principal Secretary, Human Resources Development Department, Bihar, Patna. 3. The Director, Primary Education, Bihar, Patna. 4. The Regional Dy. Director, Purnea Division, Purnea. 5. The District Education Officer, Purnea. 6. The District Superintendent of Education, Purnea. ---- Respondents with CWJC No.1245 of 2011 KUMARI RENUKA DEVI, Wife of Sri Mahendra Prasad Yadav, resident of Mohalla Shiv Nagar, P.S. K. Hat, District Purnea, posted as Assistant Teacher Middle School, Vidut Colony, Purnea, Block Sadar, District Purnea. --- Petitioner Versus 1. THE STATE OF BIHAR. 3 2. The District Education Establishment Committee through its Chairman, the District Magistrate, Purnea. 3. The District Magistrate, Purnea. 4. The Deputy Development Commissioner, Purnea. 5. The District Superintendent of Education, Purnea. --- Respondents ----------- 6 30-3-2011 In this batch of writ cases the petitioners have challenged the orders by which they have been posted in different schools on the ground that it is de hors the Primary Teachers Transfer Rules, 2006 (hereinafter referred to as „the 2006 Rules‟) promulgated on 5.8.2006. The 2006 Rules came into existence in order to regulate the teaching curriculum of primary and middle schools. Rule 3 provides that teachers may be transferred in certain circumstances, namely, teachers of one cadre can apply for a mutual transfer, or an Assistant teacher may also apply for a transfer, not more than two times in his service period. It further provides that there should be a gap of five years between one transfer and the other. Having dealt with the rules aforesaid the facts which are relevant are being stated below. The Promotion Committee consisting of the District Magistrate, Deputy Development Commissioner, District Superintendent of Education, District Education Officer, District Inspectress of School and the District Welfare Officer, sat together and considered the cases of 303 Assistant teachers for the purpose of granting them B.A. trained scale against the vacancies that existed in this scale in the district of Purnea. Options were invited from the candidates regarding the fact whether they wanted to be 4 granted a higher promotional scale; the candidates were also asked to give their option open with respect to the place where they wanted to be posted. The promotion of Assistant teachers to a higher scale is covered by the Bihar Government Primary School Teachers Promotion Rules, 1993 which is still in vogue and has not been rescinded by any other rule. Apparently, some of the petitioners gave their option before the Committee, for taking into consideration the postings to be made, whereas others did not file any representation or option, still others gave their options, after the decision of the committee. It appears that out of 303 persons, 25 persons are aggrieved by their order of posting and are ready to give up the higher promotional scale, rather, than be transferred from the present place where they are working. Such persons have given in writing that they are willing to give up the promotional scale of B.A. trained. The Establishment Committee while considering this aspect of the matter, as would appear from the counter affidavit filed on behalf of the State rejected the plea of the petitioners to forgo their promotion, on the ground that there were vacancies on the said post and teachers were required, who possessed a higher qualification of Bachelor‟s degree with training. The contention of the petitioners is that if the 2006 Rules does not envisage transfer of teachers, the posting of teachers after granting them a higher promotional scale cannot be made. The petitioners also rely on an order of this court passed on 5 10.3.2011 in CWJC No. 426/2011. I may quote the relevant portion of the aforesaid order which reads as under : “Since from the counter affidavit it is evident that such request has been considered with regard to certain persons, there is no reason as to why the request of petitioner ought not to have been considered, if he is willing to forgo his promotion to avoid transfer which is in any way not permissible under the Rule as such, unless it is for the limited purpose under which such transfer can be effected. “Failure on the part of the State to point out necessary rule which provides them such power, the transfer order in so far as it relates to the petitioner contained in Annexure-5 is hereby quashed. “The District Superintendent of Education further directed to issue an appropriate order in this regard taking into consideration the applications of the petitioner contained in Annexures 4 and 7. The court directs that such order be issued within a period of three months from the date of communication or production of a copy of this order.” In the present case the submission on behalf of the State is based on the fact that the order impugned is not a transfer „simplicitor‟ rather, it is a posting given to the petitioners and others after giving them the scale of B.A. trained. The reason for posting the petitioners at different places is that there was a requirement in the schools for B.A. trained teachers. Each school obviously has certain vacancies and such vacancies are filled up 6 by granting promotion and posting persons where the vacancy arises. In such circumstances it cannot be said that this is a pure simple case of transfer and would not as such be governed by 2006 Rules. Apparently such facts and pleadings were not on record before the learned single Judge. This court would like to draw the attention of the Principal Secretary cum Commissioner, Human Resources Development Department, Bihar to the fact that the transfer rules has banned transfer except in circumstances mentioned in rule 3. It appears that the rules have been framed without taking into consideration certain aspects, which may arises because of administrative exigencies, such as, there may be vacancies in a particular school due to retirement or death of a teacher working in the said school. Under such circumstances it may become necessary for the District Education Establishment Committee to post certain persons in the school which obviously would mean that they would be transferred from one school to another school. The aforesaid circumstances is just by way of an example. The rules do not give any “play in the joint” to the Education Department to make changes on any grounds, whatsoever, which appears to this court quite an unworkable rule. Therefore, it would be proper for the State Government to consider this aspect of the matter. I may, however, point out that vacancies against a higher scale of I. Sc./I.A. trained scale or B.Sc. / B.A. trained scale depends on vacancy in a particular school. In such circumstances, as per the 2007 Rules, persons should be adjusted in their own 7 school, if such vacancy exists, if not, it may be necessary to post the teachers by transferring them from their own school. In any case, since this court in the order referred to aforesaid has given leave to the petitioner of CWJC No. 426/2011 to represent his case before the District Superintendent of Education, the petitioners in this batch of cases are given the same leave. This court would like to point out that the case of such persons who are about to retire in a year or two should be given special consideration in view of the fact that general policy of the State Government which envisages to adjust such persons who are about to retire. These writ petitions are disposed of with the aforesaid observations and directions. A copy of this order may be handed over to the Principal Secretary, Secondary, Primary and Adult Education Department for considering the observation of this court in these writ petitions. haque ( Sheema Ali Khan, J.)