Aparesh Kumar Singh,J. - (1.) Heard learned counsel for the parties.
(2.) These three petitioners who are serving as teachers in Maithili, Physics and Chemistry in Marwari+2 High School, Ranchi, have been transferred by impugned notification at Annexure 4 dated 20th January, 2014 being office order dated 169 issued by the respondent no.2, Director, Secondary Education, Human Resource Development Department, Govt. of Jharkhand. They are aggrieved by the same inter alia on the following grounds: (i) That the petitioners are +2 teachers; their service conditions are governed by Jharkhand +2 Schools Teaching and Nonteaching Employees Recruitment and Service Condition Rules, 2012, Annexure 1 to the writ application. According to them, their transfer can only be made on the recommendation of the Establishment Committee as conceived under Rule 13 of the said Rule and in the manner indicated at Rule 14 and Rule 20 thereof which has not been done in the instant case. According to them, specific statements made by them at paragraph no. 14 to that effect stands undenied by the respondents in their counter affidavit. (ii) That the petitioners, who are teachers in Maithili, Physics and Chemistry, have been transferred to the respective schools which do not have vacant post of Maithili, Physics and Chemistry in each of those schools. Such a statement has also been made by them in paragraph no. 15 of the writ petition which again stands undenied in the counter affidavit. (iii) It is the contention of the petitioner that these transfers have been made in a punitive manner which is supported by the statements made in paragraph no. 9 of the counter affidavit. It has been stated that it has been done on disciplinary grounds and in the interest of educational environment of school. It is submitted that such a transfer in lieu of punishment amounts to malice in law. In support thereof a judgment rendered by Hon'ble Supreme Court in the case of Somesh Tiwari v. Union of India reported in (2009) 2 SCC 592 , paras 16 & 21 have been relied. The petitioners have relied upon other judgment rendered by Division Bench of this Court in the case of Uttam Kujur v. State of Jharkhand & Ors. reported in 2008 (2) JCR 306 (Jhr.) as also in the case of Chandramouli Prasad v. The State of Jharkhand & others in W.P.(S) No. 5394 of 2013 dated 4th October, 2013 , in support of their contention that a transfer made without recommendation of the Establishment Committee, is not proper in the eye of law for failing to follow the procedure and the policy prescribed for such transfer under the respondent Government. According to them, when there is a statutory rule governing their service condition, the respondents were obliged to follow the same. The petitioners have further relied upon a judgment of Division Bench of the Patna High Court rendered in the case of R.P.Singh v. State of Bihar reported in 1980 BLJR 482 , to submit that the impugned order suffers from non-application of mind as the respondents do not seem to have considered that there are no vacant post of the relevant subjects in the school where these petitioners have been transferred. On these grounds, the impugned order has been assailed.
(3.) Learned senior counsel for the petitioners has further submitted that there was a internecine fight between the headmaster and the present petitioners on some trivial issue relating to marking of attendance and the headmaster instead of considering their representation not only reported to the superior authority but also instituted an F.I.R., Annexure 2 on 2nd January, 2014 itself in haste. According to the learned counsel, these petitioners have been granted bail by the trial Court. Therefore, it is submitted that the impugned order suffers from errors on various grounds. The petitioners if at all are responsible for any misconduct are ready to face any departmental proceeding.;