Tripurari Mishra Vs The State of Bihar and others

G.C. Bharuka, J.@mdashThe sole petitioner in this writ application is aggrieved by the order dated 24.8.90 (Annexure-1). By this order, the petitioner, who is a Head master, has been transferred from a school at Muzaffarpur to another school at Goroul in the district of Vaishali. The ground for transfer is that Muzaffarpur is home district of the petitioner and according to the statutory rules, teachers or Head masters can not be posted in their home districts. The basic facts having bearings on the issues involved in this case are not in dispute. On 1.3.90 the petitioner gave his joining on the post of Headmaster in Jauhari Mal Ucha Vidyalaya, Bairgania in the district of Sitamarhi. But since by that time the acting Headmaster of that school had also been selected in the cadre of Headmaster, therefore, the petitioner was transferred to Dwarka Nath High School at Muzaffarpur. The petitioner took over his new charge on 19.5.90 where he is still working pursuant to an interim order passed by this Court. It may be relevant to state here that Durga Pd. Sinha, Respondent no. 4, who is an Assistant teacher, was acting as Incharge Headmaster of the said D.N. High School, Muzaffarpur, before the joining of the petitioner there as a regular Headmaster. It is alleged by the petitioner that the impugned order of his transfer from Muzaffarpur to Goroul has been passed pursuant to a complaint by Respondent that Muzaffarpur being the home district of the petitioner, his posting in this school was illegal.

2. Mr. Rajendra Pd. Singh, Learned Counsel appearing for the petitioner has assailed the impugned order of transfer on various grounds including malafides against the Respondents. In my opinion, it is not necessary for me to examine the allegations of mala fides because the impugned order contains definite ground for transferring the petitioner and, therefore, the impugned order is to fall or survive only on the sustainability of that ground in law.

3. The service conditions of the petitioner are governed by the provisions contained under the Bihar Non-Government Secondary Schools (Taking over of the Management and Control) Act, 1981 (hereinafter to be referred to as the Act only) and the rules framed thereunder, namely, Bihar Nationalised High Schools Service Condition Rules, 1983 (hereinafter to be referred to as the Rules only). The validity and enforcibility of these Rules were challenged in this Court in various writ applications. But ultimately the Full Bench, of which I was a member, in the case of Ram Odar Jha and Others, Ram Krishna Singh, Lalita Prasad Pandey and Hari Tiwari Vs. State of Bihar and Others has upheld the validity of the Rules. It may be noted here that the main point of challenge before the Full Bench was that since the Rules were not laid before both the Houses of the Legislature for 14 days, therefore, those have not come into force in law. The Full Bench in its majority view has held that the laying clause is directory in nature and even if it be accepted that the Rules were not laid before the two Houses of the Legislature as provided u/s 15 (2) of the Act, still, it does not either invalidate the Rules or affect its enforcibility. In my separate opinion, also by referring to various documents placed on the record, I have held that the Rules wore, in fact, placed before both the Houses of the Legislature as required by the laying clause. Rule 12 of the Rules provides for transfer of headmaster, assistant teachers and non-teaching employees. By notification no. 437 dated 28th April, 1988, certain amendments were made to this Rule. The third proviso to Rule 12 (Cha) which was inserted by way of this amendment provides that the headmaster and assistant teachers can not be posted in their home district.

4. It is an admitted fact that Muzaffarpur is the home district of the petitioner. Therefore, in view of the amended Rules, the petitioner could not have been posted in a high school at Muzaffarpur. Faced with this situation, Learned Counsel for the petitioner has sought to take advantage of a notification dated 7th August, 1990, issued by the Government, in which it has been stated that the aforesaid notification dated 28th April, 1988, having not been placed before the two Houses of the Legislature, its operation will remain suspended till further orders. This view of the Government is directly in the teeth of the Full Bench Judgment (supra) and, therefore, is inconsequential. The very ground on which the State Government has intended to suspend the enforcibility of the Rules has lost its sustainability in view of the law laid down by the Full Bench. Once the Rule has come into force in accordance with legal provisions, its enforcibility can not be suspended by the State Government acting on misconceived notion of law. Such an exercise is ultra vires the delegation made by the legislature.

5. Before parting with the judgment, to be fair to Mr. Rajendra Pd. Singh, I may notice his last limb of the submission that some of the petitioners of the Full Bench Judgment have preferred a SLP before the Supreme Court in which notices have been issued and interim order of status quo has been passed. Therefore, according to him the ratio of the Full Bench Judgment can not be taken in aid in deciding the issues in the present case. In my opinion, the submission of the Learned Counsel is not correct. The order of status quo can only affect the respective rights of the parties to the case. But till the judgment is reversed by the Supreme Court so far as ratio decidendi is concerned, it can not lose its binding effect. Accordingly, for the reasons contained hereinbefore, I find no merit in the present application. Accordingly, this writ application is dismissed. It is expected that the Government and other executing authorities will apply the Rules of transfer uniformally in case of all the persons governed by the Rules effectively and without any discrimination. However, in the facts and circumstances of this case, there shall be no order as to costs.