M.KARPAGA VINAYAGAM,C.J. - (1.) THE petitioners have filed this writ petition praying for a declaration that Rule 4(2)(6) of the Bihar State Nationalised Elementary School Teacher (Transfer and Disciplinary Action) Rules, 1994, as adopted by the Government of Jharkhand under the provisions of Section 85 of the Bihar Re -Organisation Act, 2000 is ultra vires to the extent it lays down the eligibility of Home District necessary for inter -district transfer of the male teachers on the ground that the same is against the provisions of Article 16(2) of the Constitution of India.
(2.) THE case of the petitioners is as follows: (i) The petitioners were appointed on the post of Elementary Teachers in January 2000. Some of the petitioners were posted at Palamau and some of the petitioners were posted at Latehar. (ii) They have completed five years of minimum service in the Government of Jharkhand. They filed their application for inter -district transfer in view of Rule 4 of the Bihar State Nationalised Elementary School Teacher (Transfer and Disciplinary Action) Rules, 1994. (iii) The District Education Establishment Committee considered the applications for inter -district transfer and their names were recommended to the Director, Primary Education, but their applications were, ultimately returned by the Director, Primary Education on the ground that the petitioners belonging to the district of Latehar did not fulfill the criteria of home district. (iv) Rule 4 of the Rules, 1994 lays down the condition under which any teacher can be transferred from one district to another and Rule 4(2) (5) lays down that during entire service tenure of any teacher inter -district transfer shall be done only once. (v) Rule 4(2)(6) provides that in case of male teachers, they can be transferred in their home district in case of inter -district transfer, but the same Rule provides that In case of female teachers, they have been given three options in case of inter district transfer and according to this Rule, they can be transferred to their Home District or to the Home District of their husband or to the place of posting of their husband. (vi) The aforesaid provisions were not amended after re -organisation of the State of Bihar and Jharkhand, as a result of which the petitioners, whose home district fall within the territory of re -organised State of Bihar have been denied the benefit of inter -district transfer. (vii) On account of re -organisation of States, all the petitioners, whose home districts fell within the territory of re -organised State of Bihar, have settled in one or the other districts within the re -organised State of Jharkhand and are having residence within the State of Jharkhand and it is on this account that they prayed for inter -district transfer from their place of posting district to the district of their permanent residence. (viii) But, in the instant case, the petitioners have been denied inter -district transfer only on the ground that their home district is not falling in the Jharkhand State. (ix) Therefore, the Rule 4(2)(6) of the Rules, 1994 and Amended Rules, 1997 duly adopted by the State of Jharkhand is ultra vires to the provisions of Article 16(2) of the Constitution of India as it lays down the criterial of only Home District in case of male teachers as a necessary eligibility for inter -district transfer. In elaborating this point, the learned Counsel for the petitioners would argue at length and cite 2003 (1) JCR 3 (Jhr) (Spl. Bench).
(3.) IN reply to the arguments advanced by the learned Counsel for the petitioner, the learned Counsel for the State would submit that it is not ultra vires to the provisions of Article 16(2) of the Constitution of India and the judgment relied upon by the petitioner, namely, 2003 (1) JCR 3 (Jhr) (Spl. Bench) is not applicable to the present case as the said judgment relates to the definition of local persons, which is a totally different matter.;