IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1936 of 2010 NAND KISHORE SINGH, son of Sri Dudhnath Singh, resident of Village Dehri, PS Dhangai, District Bhojpur, Ara ...........(Respondent) Appellant Versus 1. THE STATE OF BIHAR 2. The Regional Deputy Director of Education, Patna 3. The District Superintendent of Education, Bhojpur 4. District Magistrate, Bhojpur .......(Respondents)Respondents 5. Kanhaiya Ram son of Late Belgobiand Ram, resident of Mohalla Turha Toli Main Road, Buxar, at present Headmaster, Prayogic Middle School, Bihiya, PS Bihiya, Distt. Bhojpur ......(Petitioner) Respondents ----------- 03- 21/6/2011 Heard Mr. Nand Kishore Singh for the appellant, Mr. Sanjay Kumar no.I for respondent nos. 1 to 4, and Mr. Jitendra Kumar Singh for respondent no.5. 2. Respondent no.5 of CWJC No.12691 of 2010 has preferred the present appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna raises a grievance with respect to the order dated 27.10.2010, whereby the writ petition preferred by respondent no.5 herein has been allowed and the transfer order in question has been set aside. We shall go by the description of the parties occurring in the present proceeding. 3. A brief statement of facts essential for the disposal of the appeal may be indicated. Respondent no.5 herein (the writ petitioner) was at the relevant point of time posted as Headmaster of Prayogik Middle School, Bihiya, district Bhojpur, and the appellant herein (respondent no.5 in the writ proceeding) was posted as Headmaster in the Middle School, Narhi, district Bhojpur. Respondent no.5 was transferred from Prayogik Middle School, Bihiya, to take the place of the appellant at Narhi, and the appellant was transferred in the 2 place of respondent no.5, vide order dated 6.7.2010, and impugned in the present writ petition. Respondent no.5 was placed under suspension in contemplation of a departmental proceeding, and was served with charge-sheet dated 30.12.2010 incorporating therein multiple charges against him. Respondent no.5 challenged the order of transfer by preferring the aforesaid CWJC No. 12691 of 2010, which has been allowed by the learned single Judge on the ground that a school teacher covered by the Bihar State Nationalized Primary School Teachers (Transfer) Rules 2006 (hereinafter referred to as the Rules) can be transferred if the conditions mentioned in the Rules are satisfied. It is relevant to state that the Rules have been framed under the provision of Article 309 of the Constitution of India. The conditions mentioned in rule -3 not having been satisfied, the aforesaid order of transfer dt. 6.7.2010 has been set aside. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It is evident on a perusal of the Rules that it applies to the teachers as well as Headmaster of the kind of the schools in question. Rule 3, which governs transfer of such teachers, reads as follows:- “3. f'k{kd LFkkukUrj.k ds lkekU; fl)kUr%& (i) f”k{kdksa dk in vLFkkukUrj.kh; gksxkA ijUrq fuEufyf[kr ifjfLFkfr;ksa esa gh LFkkukUrj.k fd;k tk ldsxkA (d) leku dksfV ds f”k{kdksa dk ikjLifjd LFkkukUrj.k] vFkok ([k) izR;sd dksfV dks bl fu;ekoyh ds vf/klwfpr gksus ds ckn vius lsok dky esa vf?kdre nks LFkkukUrj.k ysus dh NwV nh tk;sxhA ijUrq izFke ,oa fn~orh; LFkkukUrj.k ds e/; de&ls&de ikWap o’kksZa dk varjky gksuk vko”;d gksxkA” 3 On a perusal of the rule, it appears that a teacher can be transferred only by way of mutual transfer, with the further restrictions mentioned in clause 3. It is nobody’s case that respondent no.5 and the appellant had submitted application(s) for mutual transfer. In such a situation, a teacher governed by the Rules cannot be transferred on the volition of the authorities. He can be transferred only if he submits an application for mutual transfer. That being not the case, we agree with the learned single Judge that the same is unsustainable in law. 5. Learned counsel for the appellant submits that the impugned order of transfer is for administrative reasons, is to remove respondent no.5 from the scene where he is alleged to have committed the acts of omission and commission, and is in public interest. The Court should, therefore, desist from interfering with such a transfer order. The contention on the face of it appears to merit serious consideration, but does not survive a deeper scrutiny. A transfer order is normally an administrative order, and the Court should normally desist from interfering with the same except certain well-recognized circumstances. One of them is that, if the Statute confers such administrative powers, and it is found that the authority has acted in violation of the Rules conferring such jurisdiction, then it can be said that he has acted unreasonably and irrationally and is fit to be set aside. In the present case, rule 3 clearly provides the circumstances under which an employee of the category covered by the Rules can be transferred, and it is equally evident that respondent no.5 was transferred in clear violation of the Rules. Therefore, the Court is entitled to interfere in such a situation, the authorities having acted in 4 violation of the Rules. Reliance may be placed on the classic judgment of the Court of Appeal of England in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947] 2 All. E.R. 680. 6. Learned counsel for the appellant has expressed apprehension that, in view of the order of the learned single Judge whereby the order of transfer has been set aside, the departmental proceeding initiated against respondent no.5 (the writ petitioner) may abate. The apprehension is unfounded. In fact, learned counsel for both sets of the respondents submit in one voice that respondent no.5 continues to be under suspension, and the departmental proceeding against him is still alive. We make it clear that the order of the learned single Judge and upheld by us will not by itself dilute the departmental proceeding against respondent no.5, which should be carried on in accordance with law and shall be taken to its logical conclusion. 7. In the result, we do not find any merit in this appeal which is accordingly dismissed. ( S K Katriar ) ( Amaresh Kumar Lal ) mrl