Gauhati High Court
Md. Sadique Ahmed vs The State Of Assam And 4 Ors on 8 October, 2021
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GAHC010143002021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4695/2021
MD. SADIQUE AHMED
S/O- LT. LOKMAN ALI, VILL- KABARIBAND, P.O. PATHARKANDI, DIST.-
KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, EDUCATION
(SECONDARY) DEPTT., DISPUR, GHY-06
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE INSPECTOR OF SCHOOLS
KDC
KARIMGANJ
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788166
4:THE HEADMASTER (I/C) OF ANWARUL ULUM HIGH SCHOOL
(ERSTWHILE SR. MADRASSA)
ASHALKANDI
P.O. ASHALKANDI
DIST.- KARIMGANJ
ASSAM
PIN- 788719
5:MD. JAMAL UDDIN
L.D. ASSTT.
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ANWARUL ULUM HIGH SCHOOL (ERSTWHILE SR. MADRASSA)
ASHALKANDI
P.O. ASHALKANDI
DIST.- KARIMGANJ
ASSAM
PIN- 78871
Advocate for the Petitioner : MR. M KHAN
Advocate for the Respondent : SC, SEC. EDU.
Linked Case : WP(C)/4589/2019
SAFIQUL ISLAM CHOUDHURY
S/O- LATE MUSTAFA HUSSAIN CHOUDHURY
VILL AND P.O- MOHAKAL
P.S- BADARPUR
KARIMGANJ
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY
SECONDARY EDUCATION
GOVT OF ASSAM
DISPUR
GUWAHATI- 06
2:THE JOINT SECRETARY
TO THE GOVT OF ASSAM
SECONDARY EDUCATION DEPTT
DISPUR
GUWAHATI- 06
3:THE DIRECTOR
SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 19
4:SADIK AHMED
C/O- ASIMIA SENIOR MADRASSA
P.O- KANAI BAZAR
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DIST- KARIMGANJ
ASSAM
PIN- 788724
------------
Advocate for : MR. S K TALUKDAR
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 3 ORS
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 08-10-2021
Heard Mr. M. Khan, learned counsel for the petitioner in WP(C)
4695/2021 and T.U. Laskar, learned counsel for the writ petitioner in WP(C)
4589/2019. Also heard Mr. S.M.T. Chistie, learned counsel for the
respondents No.1, 2 and 3 being the authorities under the Secondary
Education Department of the Govt. of Assam.
2. The respective private respondents of the two writ petitions are being
represented as writ petitioner in their own respective petition and therefore, no
separate hearing is required.
Considering the nature of the order proposed to be passed, we are of the
view that the respective Headmaster of the School are not required to be heard.
3. The petitioner Md. Sadique Ahmed in WP(C) 4695/2021 is an LD Assistant
in the Asimia High School, Karimganj district whereas, the writ petitioner in
WP(C) 4589/2019 namely Safiqul Islam Choudhury is an LD Assistant in the
Deorail Title Madrassa also located in the Karimganj district.
4. Safiqul Islam Choudhury has assailed the order dated 01.06.2019 of the
Joint Secretary to the Govt. of Assam in the Secondary Education Department
by which he was transferred and posted in the Asimia Sr. Madrassa, Karimganj
which later on became Asimia High School and by the same order Sadique
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Ahmed was transferred and posted as LDA in the Deorail Title Madrassa,
Karimganj. The order of transfer shows that it was made for rationalising the
teaching and non-teaching staff of the schools. In WP(C) 4589/2019 instituted
by Safiqul Islam Choudhury an interim order dated 19.07.2019 was passed by
which the impugned order of transfer dated 01.06.2019 was stayed. Prima
satisfaction arrived at by the Court while issuing the interim order was that the
rationalisation of posts would be applicable when a particular institute has more
students and lesser number of teachers, whereas, another institute would have
less number of students and more teachers. The entire arrangement is to
rationalise the pupil teacher ratio so that both school have appropriate number
of teachers.
5. But if the transfer was made for rationalisation there cannot have been a
cross transfer of a LDA from one to other and vice versa. The very purpose of a
cross transfer would not serve the purpose of rationalisation. On the aforesaid
ground, the interim order was passed. We do not find any infirmity to take a
different view what the Court had taken while passing the interim order and
therefore, while giving a final consideration the order dated 01.06.2019 would
have to be considered to be an order passed in excess of jurisdiction. Further
the concept of rationalisation flows from maintaining appropriate pupil teacher
ratio meaning thereby that the teachers of the school having lesser number of
students can be transferred to a school having more number of students. We do
not understand the logic of rationalisation by transferring the LDA of the
respective schools, unless of course, if there is some evaluation that one LDA is
of higher calibre who can attend to more number of students than the other
LDA.
6. From both the aforesaid aspects, we are of the view that the transfer order
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dated 01.06.2019 requires an interference and accordingly, the same stands set
aside. The implication thereof would be that Sofiqul Islam Choudhury will
continue as the LDA of Deorail Title Madrassa and Md. Sadique Ahmed will
continue as the LDA of Asimia High School which was earlier called Asimia
Senior Madrassa. However as the transfer is a prerogative of the employer,
liberty remains with the authorities if the causes arise in the public interest, to
take decision as deemed to be required.
7. It is stated that Sadique Ahmed the petitioner in WP(C) 4695/2021 in view
of the interim order of the Court dated 19.07.2019 in WP(C) 4589/2019 was
subsequently transferred to another school namely Anwarul Ulum Senior
Madrassa. As the order 08.11.2019 was passed as a consequence of the interim
order dated 19.07.2019, we also interfere with the said order and set aside.
8. The implication of setting aside the respective transfer orders would be that
the authorities would have to consider that both the writ petitioners were
continuously in service in their respective posts and therefore their respective
salary should be paid.
9. Both the writ petition stands disposed of in the above terms.
10. Interim order passed earlier stands vacated.
JUDGE
Comparing Assistant
