1. The point involved in this writ petition is whether a teacher of a private school taken over by Government may be transferred by Government from one school to another. The question arises in the following circumstances.
2. On 1 February 1943, the petitioner was appointed as an assistant master in B.M. High School, Bhubaneswar, and had been teaching in that school since then. On 2 January 1958, the Director of Public Instruction, Orissa, wrote a letter to the secretaries of all high schools proposing to take them over on certain conditions. It was mentioned in the said letter that the managing committee must agree to accept the revised rules prescribed by Government and to observe such rules in addition to, or in place of, those already prescribed by the Orissa Education Code in general, and particularly the rules relating to the constitution, term of office, powers and functions of the managing committee, appointment of teachers and use of school funds; that if the committee agreed to accept the conditions, they should carry a resolution to that effect at a meeting of the managing committee and send a copy of the resolution signed by all the members of the committee to the Inspector of Schools. It is said that the B.M. School, Bhuhaneswar, was taken over by the Government and the managing committee was dissolved.
3. On 11 August 1958, the special rules as contemplated in the letter of the Director of Public Instruction dated 2 January 1958, were communicated to the Inspector of Schools who, in turn, communicated the same to the secretaries of the schools concerned. These rules include rules for the appointment, transfer, leave and service conditions of the employees, Rule 8(c) providing that the Inspector or Inspectress of Schools has the power to transfer the members of the teaching staff and clerks from one school to another of the same status.
4. On 26 May 1965, the petitioner who was then classical teacher of the B.M. High School, Bhubaneswar, was transferred ae classical teacher of the Nigamanand High School, Gope, against the sanctioned permanent post of classical teacher. Thereupon, on 20 September 1965, the petitioner filed the present writ petition against the State of Orissa. the Director of Public Instruction and the Inspector of Schools, for the issue of a writ in the nature of mandamus directing the opposite parties not to implement the said order of transfer, for declaration that the said order of transfer is illegal, inoperative and void, and for stay of the operation of the transfer order dated 26 May 1965.
5. The points urged on behalf of the petitioner are these: He is not a Government servant, nor did he opt for Government service; he is neither entitled to pension nor to the benefit of provident fund and other facilities of Government servants. The transfer conditions were not accepted by the petitioner or by the managing committee. Assuming that the managing committee had directly or indirectly accepted the conditions of transfer, that would not establish privity of contract between the Government and the petition. In view of Article 299 of the Constitutions the question of contract does not arise at all. The revised rules, as under the Orissa Education Code, have no binding force and much leas so on the persons not having the status of Government servants. So, neither by status nor by contract the petitioner is a Government servant. So, the executive act of the Inspector purporting to transfer the petitioner from one school to another is void.
6. It was argued however, on behalf of the opposite parties that the revised rules providing for the power of transfer were accepted by the managing committee of the school; the managing committee as proprietor of the school transferred the school to Government. As soon as the managing committee transferred the school with its assets to the Government, the managing committee ceased to exist and the old relationship between the teacher and the managing committee was extinguished and a new relationship was created between the teacher and the Government, It was submitted that no formal contract was necessary to create a new relationship of master and servant; there was an implied contract on the part of the petitioner to serve the Government. By reference to the special rules referred to above, it was submitted that once the schools are transferred to Government, the teacher comes under the control of the Government and his consent is not necessary. Therefore there was no bar to the Inspector transferring the petitioner from one school to another.
7. The question is: Is the petitioner who was the teacher of a private school taken over by Government, a Government servant? This raises the question whether the school to which the petitioner belonged is a Government school. If it is not a Government school, then has the Government right to transfer the teacher of such, a school? It cannot be disputed that the school was originally a private school; subsequently, it was taken over by Government but still it remained for the school to be converted into a Government school in line with other Government schools and its teachers absorbed in Government Educational Service. It is not understandable how in a non-Government school its teacher can be subject to transfer as in the case of a teacher in a Government school. The petitioner was holding a post of a teacher in a private school and does not belong to, nor has he been absorbed in, the Educational Service of the State. The petitioner was only serving in a private school to which he belonged. He, not having boon absorbed in the Government Educational Service, cannot be transferred from one school to another.
8. In this view of the case, the impugned order of transfer of the petitioner is quashed. The opposite parties are directed not to give effect to the said order of transfer.
9. The petitioner in a subsequent application dated 13 April 1966 claimed arrears of salary for which, however, he made no prayer in the original writ petition which he filed on 29 September 1965. In our opinion, since he did not actually work in either of the schools we do not propose to pass any orders in this writ petition for directing payment of salary claimed by him as it may involve disputed questions of fact. The petitioner may seek other remedies, If any, open to him according to law.
10. The writ petition is accordingly allowed in terms as aforesaid with coats. Hearing fee Rs. 100.
11. I agree.