Phanindra Jidung vs The State Of Assam And 2 Ors
2021 Latest Caselaw 2375 Gua

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GAHC010156812021




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

                                 Case No. : WP(C)/5130/2021

            PHANINDRA JIDUNG
            S/O- LT. T.P.JIDUNG, R/O- RUKMINI NAGAR, P.S. DISPUR, GHY-06



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, SECONDARY
            EDUCATION DEPTT., DISPUR, GHY-6

            2:THE JOINT SECRETARY
             GOVT. OF ASSAM
             SECONDARY EDUCATION DEPTT.
             DISPUR
             GHY-6

            3:MAMATA HOJAI
            THE ADDL. DIRECTOR OF SECONDARY EDUCATION
            ASSAM
             KAHILIPARA
             GHY-1

Advocate for the Petitioner   : MR B SINHA

Advocate for the Respondent : SC, SEC. EDU.
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                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                    ORDER

Date : 30.09.2021

Heard Mr. M.K. Choudhury, learned Senior Counsel, assisted by Mr. B. Sinha and Mr. P. Bharadwaj, learned counsel for the petitioner and Mr. D. Saikia, learned Advocate General of the State, assisted by Mr. S.M.T. Chistie, learned Standing Counsel for the respondents.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside the notification dated 22.09.2021 issued by the respondent no. 1. The said notification has three parts. Firstly, the petitioner is transferred and posted as the Director of Bodo Medium and other Tribal Languages, Assam from the date of taking over charge against existing vacancy. The second part relates to transfer and posting of the respondent no.3 to hold charge as the Director of Secondary Education, Assam with effect from the date of taking over charge vice the petitioner. Thirdly, the respondent no.3 was relieved of the charge of Director of Bodo Medium and other Tribal Languages, Assam. The petitioner has also prayed for directing the respondent authorities to allow the petitioner to hold the post of Director of Secondary Education, Assam. Pending disposal of the writ petition, the learned senior counsel for the petitioner has pressed for an interim relief to the effect that either the impugned notification be stayed or alternatively, status quo as regards to the petitioner be maintained by the respondents.

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3) The learned Additional Advocate General has opposed the prayer for interim relief.

4) The skeletal facts as portrayed in the writ petition, necessary for the purpose of considering the interim prayer is that since 27.10.2016 the petitioner is holding the post of Director of Secondary Education. It is not in dispute that until the recent sequence of events, the respondent no. 3 was hitherto holding the post of Additional Director of Secondary Education, Assam. The Government had taken a decision to and has established a new Directorate known as Directorate of Bodo Medium and other Tribal Languages, Assam. Initially, by a notification dated 04.09.2020, the competent authority had posted the respondent no. 3, Additional Director of Secondary Education, Assam as the Director of Bodo Medium and other Tribal Languages (in the rank of Additional Director in the Directorate of Bodo Medium and other Tribal Languages, Assam in addition to her own duties. Thereafter, the Minister to the Government of Assam, Education and Welfare of Plain Tribes & Backward Classes Department (WPT & BC Department for short) had issued a note dated 28.06.2021 to the respondent no. 1, inter alia, directing the said authority to release the respondent no. 3 as Additional Director of Secondary Education, Assam and made full-fledged Director of Directorate of Bodo Medium and other Tribal Languages, Assam and a direction was also issued that other required staff be placed from the Directorate of Secondary Education/ Directorate of Elementary Education, Assam, as required. Further direction was also issued for arrangement for office of the new Directorate of Bodo Medium and other Tribal Languages, Assam may be made in RMSA Office. This was followed by a notification dated 22.07.2021 by which in partial modification of the herein Page No.# 4/10

before mentioned notification dated 04.09.2020, notifying the post of Director of Bodo Medium and other Tribal Languages, Assam in the rank of full-fledged Director. By an order dated 22.07.2021, the respondent no. 1 had allowed the respondent no. 3 to hold the charge of Director of Bodo Medium and other Tribal Languages, Assam in addition to her own duties till posting of a regular Director. The impugned order was thereafter issued on 22.09.2021.

5) The learned senior counsel for the petitioner has submitted that as per Schedule-I of the Assam Secondary Education Service Rules, 1982, the post of Director of Bodo Medium and other Tribal Languages, Assam is not included and therefore, the said post not encadred but an ex-cadre post. Accordingly, it is submitted that the petitioner could not have transferred to an ex-cadre post. It is submitted that the notifications and other office orders as mentioned in the writ petition discloses that no office or administrative set-up is ready and although a Directorate is created, there is no staff. Accordingly, it is submitted that to post the petitioner in a post which has no establishment and the post which was held by his subordinate is nothing but a public humiliation of the petitioner.

6) The learned Advocate General has submitted that as per his opinion, only a dynamic person is selected for appointment to a newly created department of the State, because he would have to set-up the establishment, which requires a great effort to set up a Directorate from out of nothing. It is submitted that by an order under memo dated 11.09.2020, the Government had sanctioned 22 (twenty-two) posts for the Directorate of Bodo Medium and other Tribal Languages, Assam. Accordingly, it is submitted that perhaps in the Page No.# 5/10

estimation of the competent authorities, the petitioner was more suitable for the post. Accordingly, it is submitted that the posting of the petitioner as Director of Bodo Medium and other Tribal Languages, Assam is not his humiliation as perceived by the petitioner. It is submitted that since the issuance of notification, the petitioner has stopped attending office and therefore, the appropriate authority had permitted the respondent no. 3 to unilaterally take over the charge of the post of Director of Secondary Education till posting of a regular Director as indicated in the order dated 22.07.2021 (Annexure-10).

7) It is also submitted that the erstwhile authority i.e. Director of Public Instruction, Assam, which existed earlier was bifurcated into three separate Directorates, which are Directorate of Higher Education, Directorate of Secondary Education and Directorate of Elementary Education. Thereafter, Directorate of State Council of Education and Research was established. It is submitted that in some of the law books available in the market, the Schedule-I to the Assam Education Service Rules, 1982 does not contain the post of Director of Secondary Education, which was held by the petitioner, whereas some books disclose the said post. Accordingly, it is submitted that he would try to get the Gazette notification of the said Rule containing Schedule-I, or notifications, if any, in respect of Schedule-I of the Assam Education Service Rules, 1982. Nonetheless, it is submitted that be that as it may, the Government has by notification dated 27.09.2021, had encadred the post of Director of Bodo Medium and other Tribal Languages, Assam in Schedule-I (under Rule-4) of the Assam Education Service Rules, making it subject to amendment of Schedule-I. Accordingly, it is submitted that the petitioner would now have no lawful grievance that the post to which he is transferred is an ex-cadre post.

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8) In view of the nature of grievances raised in the present writ petition, let a notice returnable on 25.10.2021 be issued. The learned counsel for the petitioner shall furnish requisite extra copies of the writ petition to the learned departmental counsel within 2 (two) days. The petitioner shall take steps within 2 (two) days for service of notice on the respondent no. 3 by registered post with acknowledgement due.

9) The learned counsel for the petitioner is at liberty to collect the postal receipt number from the Registry and then to submit postal track report prior to the next date of listing.

10) Considering the material available on record, specifically (i) the notification no. ASE.291/2021/23 dated 22.07.2021 (Annexure-9), by which in partial modification of the notification dated 04.09.2020, the post of Director of Bodo Medium and other Tribal Languages, Assam has been made in the rank of full-fledged Director; (ii) communication under memo no. A(I)E.656/ 99/437 dated 11.09.2020, as produced by the learned Advocate General, conveying sanction in respect of creation of 22 (twenty two) posts for the Directorate of Bodo Medium and other Tribal Languages, Assam; (iii) notification no. ASE.291/2021/28 dated 27.09.2021 as produced by the learned Advocate General, by which the post of Director of Bodo Medium and other Tribal Languages, Assam has been included in Schedule-I (pending amendment of the said Schedule-I). From a conjoint reading of the Assam Education Service Rules, 1982, and the herein before referred notifications and orders dated 04.09.2020, 11.09.2020 and 27.09.2021, prima facie, does not indicate that the Page No.# 7/10

transfer of the petitioner is in violation of any Act, Statutory Rules or notifications in force. The petitioner has not been able to demonstrate that the impugned order of transfer would be to the detriment of or irreparable prejudice his future service career.

11) As regards the plea to the effect that there is no existing establishment, the Court is of the considered opinion that the petitioner should find solace in the submissions made by the learned Advocate General who had submitted to the effect that as per his personal opinion, only a dynamic person is selected for appointment to a newly created department of the State, because he would have to set-up the establishment, which requires a great effort to set up a Directorate from out of nothing. The Court finds the said statement contains a very positive note.

12) Nonetheless, on the prayer for interim relief, the Court is of the considered opinion that the petitioner does not have a right to have a posting of his choice. In this regard, reference may be made to the case of Chief General Manager (Telecom), NE Telecom Circle & Anr. Vs. RAjendra Ch. Bhattacharjee & Ors, (1995) 2 SCC 532, wherein the Supreme Court of India had observed as follows:-

"... It is needless to emphasis that a Government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala and, therefore, there was no justification for the Tribunal to set Page No.# 8/10

aside the respondent's transfer to Dimapur. ..."

13) In the case of State of Uttar Pradesh Vs. Gobardhan Lal, (2004) 11 SCC 402, the Supreme Court of India had held as follows -

"7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the Page No.# 9/10

reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."

14) It would not be out of place to refer to the observations made by the Supreme Court of India in paragraphs 7 and 8 of the case of Union of India Vs. S.L. Abbas, (1993) 4 SCC 357 as quoted below (extracted from 1993 STPL 3777 SC):-

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323-A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and Page No.# 10/10

constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority) ."

15) In view of the discussions above, this Court is of the considered opinion that this is not a fit and proper case for any ad interim interference of this Court in respect of the impugned notification of transfer dated 22.09.2021 (Annexure-11).

16) The Court hastens to add that the observations made herein before is only for the purpose of considering the prayer for ad interim relief and nothing contained herein is an expression of the Court on the merit of the writ petition and therefore, this order shall not prejudice any of the parties when the matter is finally heard on merit.

17) List the matter on 25.10.2021 in admission column. The affidavit-in-opposition shall be filed at least 3 (three) clear days before the next date of listing.

JUDGE

Comparing Assistant