IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10264 of 2010 RAM SUDAMA CHAUDHARY S/O LATE CHANDESHWAR CHAUDHARY R/O VILL & P.O.TELHARA, DISTT-NALANDA. VERSUS 1. THE STATE OF BIHAR 2. THE DIRECTOR PRIMARY EDUCATION BIHAR, PATNA 3. THE R.D.E.E. PATNA DIVISION 4. THE DISTRICT SUPERINTENDENT OF EDUCATION NALANDA ----------- For the Petitioner : Mr. Ashok Chaudhary, Adv. For the Intervenor-Respondent : Mr. Tej Bahadur Singh, Sr. Adv. Mr. Manish Kumar, Adv. For the State : AC to GP-8. ------------ 02 03.11.2010 The dispute, in the present case, relates to transfer and posting of the petitioner. Petitioner is a Headmaster of a Government School and is governed by the Bihar State Nationalised Primary School Teachers (Transfer) Rules, 2006 which deals with transfer of Headmasters and Teachers in Government Schools. Petitioner was posted at Middle School, Mai, Hilsa, Nalanda. He alleges that in 2007, he sought transfer to Middle School, Telhara, Ekangarsarai, which was rejected by the District Establishment Committee in 2009. Petitioner also alleges that his earlier option not having been acted upon, he gave fresh option. His first option was Middle School, Telhara and second option was Keshopur in Ekangarsarai. He states that ignoring his first preference, he was posted at Middle School, Keshopur by decision of the Establishment Committee dated 26.06.2009. In obedience thereof, he joined at Middle School, Keshopur on 13.07.2009. In the order of the District Establishment Committee, the District Superintendent of Education was authorized to rectify transfer orders if there were - 2 - mistakes. He represented to the District Superintendent of Education as to why his first option of Middle School, Telhara was not acted upon. Considering this fact, petitioner’s transfer order, which he had already acted upon, was modified by the District Superintendent of Education by Memo No.4005 dated 05.09.2009 and his transfer was deemed to be to Middle School, Telhara instead of Middle School, Keshopur. When petitioner intended to act in pursuance of the said order, the Regional Deputy Director of Education, Patna Division, Patna stayed the said order of transfer to Telhara, which persuaded the petitioner to file C.W.J.C. No.13162 of 2009 before this Court, which was ultimately disposed of on 06.01.2010, inter alia, holding that so long as the order of transfer to Telhara was not recalled or cancelled, he would be entitled to join Telhara and continue there. Accordingly, petitioner joined at Middle School, Telhara as the Headmaster but now by the impugned order (Annexure-1) issued by the District Superintendent of Education, Nalanda vide Memo No.4005 dated 05.09.2009, he is again asked to join Keshopur. Learned counsel for the petitioner submits that in view of the 2006 Transfer Rules, as aforesaid, this would amount to second transfer and, that too, not at the instance of the petitioner and, thus, is impermissible. On the other hand, an intervention application has been filed by one Om Prabha Devi contesting the matter and stating that in fact the petitioner had given only one option. After his earlier option was rejected that was for Telhara, he joined Keshopur and that order - 3 - stood exhausted by compliance. Petitioner could not thereafter seek transfer to Telhara. It is pointed out by the intervenor-respondent that in fact after his first option, as exercised in 2007, was rejected, petitioner was granted opportunity to make representation for transfer to any other three places than Telhara. Thus, there was no occasion for petitioner to make representation for transfer to Telhara. It is further submitted that the District Establishment Committee, having considered the matter and passed order of transfer, the District Superintendent of Education has no authority to remove the order of the District Establishment Committee. He could at best refer the matter to the Establishment Committee. Thus, from the facts as stated above, it would be seen that what is of essence is what are the options that the petitioner has exercised and at what time and before whom. As under the Transfer Rules, in so far as the Headmasters and Teachers are concerned, the posts have been made non-transferable under these Rules and, in particular Rule-3, the right of employer to transfer has been totally taken out. The transfer is permissible only on the volition of the employee and in two circumstances. Firstly, on mutual transfer basis and secondly option being exercised and, that too, limited to two options in service career. Before proceeding further in the matter, it is appropriate to direct the Director, Primary Education, Government of Bihar, Patna to enquire into the matter and find out what are the options the petitioner had made and what at first time option made in - 4 - the year 2007 was considered and not acted upon, that became infructuous and petitioner became entitled to make a second option. What was the second option? If it is found that the second option was for two places, the first being Telhara and the second being Keshopur, then the Director may consider the order as issued on 05.09.2009 to be valid and not to be interfered with but if it is found that Telhara was not one of the options or not the first option, then the order dated 11.06.2010 vide Memo No.2820 would operate. The Director, Primary Education, Government of Bihar, Patna would be well advised to collect all material facts before taking any decision, which decision must be taken within three months from today. It is not in dispute that petitioner, pursuant to the order as contained in Memo No.4005 dated 05.09.2009, has already joined Telhara. He would continue to work there provided that he has not been relieved subject to such other orders that may have been passed but then he would obey the order passed by the Director, Primary Education, Government of Bihar, Patna, which, as noted above, would be passed within three months. With these observations and directions, the writ petition is disposed of. Trivedi/ (Navaniti Prasad Singh, J.)