WA/59/2020
2021 Latest Caselaw 227 Gua

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GAHC010257832019




                             THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                            WRIT APPEAL NO.59 OF 2020
                            1. The State of Assam, through the Commissioner & Secretary to
                            the Government of Assam, Secondary Education Department,
                            Assam Secretariat, Dispur, Assam, PIN - 781005.

                            2. The Director, Secondary Education, Assam, Kahilipara, Guwahati,
                            Kamrup (Metro), Assam, PIN - 781019.
                                                                            ........Appellants
                                           -Versus-

                            Simanta Kumar Deka,
                            Son of Sri Khageswar Deka,
                            Village Sarthebari, PO: Sarthebari,
                            District: Barpeta, Assam, PIN - 781307.
                                                                           ........Respondent

-Before-

Hon'ble the chief justice Mr. Sudhanshu Dhulia Hon'ble Mr. Justice SUMAN Shyam

For the Writ Appellants : Ms. P. Chakraborty, Standing Counsel, Education (Secondary) Department.

  For the Respondent                        : Mr. I.H. Saikia, Advocate.

  Date of hearing and Judgment & Order      : 25th January, 2021.


                                JUDGMENT & ORDER (ORAL)
  (Sudhanshu Dhulia, CJ)

Heard Ms. P. Chakraborty, learned standing counsel, Education (Secondary) Department, appearing for the appellants. Also heard Mr. I.H. Saikia, learned counsel for the respondent/writ petitioner.

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2. This writ appeal is filed by the appellants (respondents in the writ petition) challenging the order dated 27.06.2019 passed by the learned Single Judge in WP(C) No.4231/2019.

3. The respondent herein (petitioner in the writ petition), on being selected by the Assam Public Service Commission (APSC), was appointed as District Elementary Education Officer (DEEO) vide order dated 07.06.2019 and was posted at Dhubri. The said order was later modified by the Secondary Education Department and vide order dated 18.06.2018, the respondent/writ petitioner was posted as DEEO at Nalbari, where he joined on 21.06.2018. Vide another Notification dated 01.03.2019, though the Government proposed to transfer the respondent/writ petitioner from Nalbari to Cachar in the same capacity but the said order was not given effect to and the respondent/writ petitioner remained as DEEO at Nalbari. Thereafter, again a Notification dated 18.06.2019 was issued transferring the respondent/writ petitioner from Nalbari to Hailakandi with the same capacity. It is the Notification dated 18.06.2019, which was challenged by the respondent/writ petitioner before the learned Single Judge by way of filing the aforesaid writ petition.

4. It is the case of the respondent/writ petitioner before the learned Single Judge that though he was transferred from Nalbari to Hailakandi within a period of 1(one) year of his posting at Nalbari, prior approval of Hon'ble Chief Minister of the State is required to be taken. The transfer order does not say that prior approval of the Hon'ble Chief Minister has been taken.

5. It is submitted by Mr. Saikia, learned counsel for the respondent/writ petitioner that guidelines in these cases were issued by the Government stipulating that a Government servant shall not be transferred within 2(two) years of service but in exceptional circumstances, this can be done but only after obtaining the approval of the Hon'ble Chief Minister and by assigning reasons as well.

6. Both these factors have not been done in the present case. Neither the approval of the Hon'ble Chief Minister had been taken nor any reasons had been assigned.

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7. In the counter affidavit, the State has taken a ground that there are certain newspaper reports against the writ petitioner/respondent about non-supply of text books, etc., but the learned Single Judge has held that merely on the basis of a newspaper report, such an action could not have been taken.

8. We fully agree with the order dated 27.06.2019 passed by the learned Single Judge in WP(C) No.4231/2019 and hence there is no scope of interference with the order of the learned Single Judge. Not only the reasons assigned by the learned Single Judge are sustainable but we also find that in this case, the consent of the Hon'ble Chief Minister was not taken. Consequently, the writ appeal fails and is hereby dismissed.

                              JUDGE                            CHIEF JUSTICE




Comparing Assistant