Anupama Das Choudhury vs The State Of Assam And 2 Ors
2022 Latest Caselaw 2054 Gua

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GAHC010147532021




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

                                Case No. : WP(C)/4929/2021

            ANUPAMA DAS CHOUDHURY
            W/O SRI MONOJ KUMAR CHOUDHURY,
            RESIDENT OF AJANTA PATH, 1ST BYE LANE, HOUSE NO. 18, BELTOLA,
            GUWAHATI ,KAMRUP M ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
            OF ASSAM.GOVT. OF ASSAM, EDUCATION DEPARTMENT, DISPUR
            GUWAHATI

            2:THE DIRECTOR OF SECONDARY EDUCATION

             ASSAM
             KAHILIPARA
             GUWAHATI 19

            3:SRI DIPAMONI BORA
             SUBJECT TEACHER (HISTORY) GOPAL BORO H.S SCHOOL
             DISPUR M THROUGH THE PRINCIPAL
             GOPAL BORO H.S SCHOOL
             DISPUR GUWAHATI 0

Advocate for the Petitioner   : MR D CHOUDHURY

Advocate for the Respondent : SC, EDU

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) Date: 09.06.2022

Heard Mr. D Choudhury, learned counsel for the petitioner. Also heard Mr. KN Choudhury, learned senior counsel for the respondent No.3 and Mr. R Majumdar, learned counsel for the respondent No.1 being the authorities in the Secondary Education Department, Government of Assam.

2. Both the writ petitioner Smti Anupama Das Choudhury and the respondent No.3 Smti Dipamoni Bora had made their respective representations requesting for a transfer to the post of subject teacher in history in the Gopal Boro H.S. School located at Guwahati. The writ petitioner Smti Anupama Das Choudhury is a subject teacher in history in the Gurdon Higher Secondary School in the Nalbari district, whereas the respondent No.3 Smti Dipamoni Bora is a subject teacher in history in the Govt. Boys Higher Secondary School, Dhubri. Both the writ petitioner and the respondent No.3 expresses certain inconveniences in their service conditions resulting in the request that they be transferred to the vacant post of subject teacher in history in the Gopal Boro HS School, Guwahati.

3. On the premises that the representation of the writ petitioner Smti Anupama Das Choudhury was not given its consideration, WP(C)No.4512/2018 was instituted which was given a final consideration by the order dated 31.07.2018 providing as extracted:

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"Transfer is an incident of service and is not a matter of right. Government can transfer any employee anywhere in public interest. However, it must be remembered that employees are human beings and they are also prone to suffer from certain problems which needs to be considered humanely. In this case, though the Hon'ble Minister has approved the transfer of the respondent No.7, the formal order has not been issued, therefore, the respondents are directed to consider the case of the petitioner, keeping in view the humanitarian grounds based on which her transfer was requested."

4. The requirement of the order dated 31.07.2018 would be that the representation of the writ petitioner be given a consideration keeping in view the humanitarian ground based upon which the transfer was requested. After the order 31.07.2018 of this Court, the Director of Secondary Education, Assam passed the order dated 01.08.2018, whereby the representation submitted by the respondent No.3 was allowed and accordingly the respondent No.3 was transferred to the vacant post of subject teacher in history in the Gopal Boro HS School, Guwahati. In the circumstance, the writ petitioner instituted WP(C)No.5745/2018, which was again given a final consideration by the order dated 11.10.2018 wherein it was provided as extracted:

"Despite the direction given in the last order the impugned order dated 01.08.2018 has been issued by the Director of Secondary Education, Assam by which the respondent No. 7 has been transferred and posted to Gopal Boro Higher Secondary School. Being aggrieved by the order, the petitioner has come once again before this Court challenging the impugned order. Learned Additional Advocate General appearing for the State of Assam at the very out set candidly admitted that the impugned order dated 01.08.2018 is in clear violation of the direction given in the order dated 31.07.2018 passed by this Court in WP(C) No. 4512/2018. While doing so, the learned Additional Advocate General also submitted that the impugned order may be quashed Page No.# 4/9

and set aside and the respondents may be directed afresh to re-consider the case of the petitioner in the light of the direction given in the order dated 31.07.2018. In view of the submission of the learned Addl. Advocate General, Assam appearing for the State respondents, the impugned order is quashed and set aside and the case of the petitioner is remanded back to the respondents to re-consider in the light of the order passed on 31.07.2018."

5. A reading of the extracted portion of the order dated 11.10.2018 would go to show that there was an admission by the respondent authorities that the order dated 01.08.2018 was passed in violation of the order dated 31.07.2018 passed in WP(C)No.4512/2018. Accordingly, the order dated 01.08.2018 was set aside and the matter was remanded back to the respondent authorities for a re- consideration of the matter in the light of the order dated 31.07.2018 in WP(C)No.4512/2018.

6. Being aggrieved, the respondent No.3 preferred WA No.328/2018, which was given its final consideration by the order dated 16.09.2019. The relevant provision of the order dated 16.09.2019 in WA No.328/2018 of the Division Bench is extracted as below:

"For non-consideration of the order dated 31.07.2018, which had vitiated the order dated 01.08.2018, as held by the learned Single Judge based on the submission of the learned Additional Advocate General, Assam, the present appellant cannot be faulted with as no notice was issued to her before passing of the order dated 31.07.2018.

It cannot be countenanced in law that while a direction is issued to consider the representation of one representationist, similar representation submitted by another representationist, on the same issue can be disregarded. This is precisely what has happened in the instant case. The appellant is also entitled to due consideration at par Page No.# 5/9

with respondent no.1 herein.

We are told that the appellant, because of the status-quo order passed by this Court, is continuing to serve in the post of Subject Teacher in History in Gopal Boro Government Higher Secondary School, Guwahati.

In the facts and circumstances of the case, we dispose of this appeal by providing that the respondents will consider as to whether both the appellant and the respondent No.1 can be accommodated in any school in Guwahati and, if not, then the respondents will pass appropriate orders after considering the representation of both the appellant and the respondent, posting either of the two i.e. the appellant or the respondent No. 1, in Gopal Boro Government Higher Secondary School, Guwahati. The entire exercise will be completed within a period of 6(six) weeks from the date of a certified copy of this order."

7. In response thereof, the order dated 17.02.2021 was passed by the Commissioner and Secretary to the Government of Assam in the Secondary Education Department by which the earlier transfer of the respondent No.3 was retained, inasmuch as, she was already working as subject teacher in the Gopal Boro HS School. Being aggrieved the present writ petition is instituted.

8. While the matter was moved on 28.09.2021, an interim order was passed whereby the order dated 17.02.2021 of the Commissioner and Secretary to the Government of Assam in the Secondary Education Department was stayed. In the resultant situation, IA(C)No.2065/2021 has been instituted by the respondent No.3 seeking vacation of the interim order dated 28.09.2021. In our order dated 28.09.2021 in paragraphs 10 and 11 it was already taken note of as extracted:

"10.The requirement of the order of the Division Bench is that the authorities will at Page No.# 6/9

the first instance consider whether both the petitioner and the respondent No.3 can be accommodated in the Gopal Boro Higher Secondary School, Guwahati. If the said endeavour fails the second requirement was that appropriate order shall be passed considering the representations of both the petitioner and the respondent No.3 for posting either of the two in the school concerned. Consequent thereof is the order impugned in this writ petition dated 17.02.2021 of the Commissioner and Secretary to the Government of Assam in the Secondary Education Department."

"11.The order impugned goes to show that the Commissioner had taken only one aspect of the matter into consideration that the respondent No.3 was continuing in the Gopal Boro Higher Secondary School, Guwahati and therefore, regrets the inability to accommodate the petitioner. The said order in the prima facie view of the Court is again contrary to what the Division Bench had provided that when two representations are submitted the authorities cannot consider one representation by ignoring the other. What the Division Bench had held earlier had precisely again happened in the order impugned dated 17.02.2021."

9. In paragraph 10 of the order dated 28.09.2021, it has been clarified that the requirement of the order of the Division Bench dated 16.09.2019 in WA No.328/2018 was that at the first instance, the authorities would consider whether both the writ petitioner and the respondent No.3 can be accommodated in the Gopal Boro HS School. The second requirement was that if the said endeavour fails, in such event, an appropriate order be passed considering the representations of both the writ petitioner and the respondent No.3 for posting, either of the two in the school concerned i.e. Gopal Boro HS School. It was taken note of that while the order impugned dated 17.02.2021 was passed by the Commissioner and Secretary to the Government of Assam in the Secondary Education Department only one aspect of the matter was taken into consideration that the respondent No.3 was already continuing in the Gopal Page No.# 7/9

Boro HS School, Guwahati and therefore no further consideration was required.

10. We reiterate the prima facie view formed when the matter was moved on 28.09.2021 that the view taken by the Commissioner and Secretary in the Secondary Education Department, Government of Assam was contrary to what the Division Bench had provided that if both the writ petitioner and the respondent No.3 cannot be accommodated in the Gopal Boro HS School, in such event, the representations of the writ petitioner and the respondent No.3 be taken into consideration and a reasoned order be passed thereon. In such view of the matter, as the Commissioner and Secretary in the order dated 17.02.2021 had not done the needful in respect of the second requirement of the order dated 16.09.2019 of the Division Bench in WA No.328/2018, we interfere with the order dated 17.02.2021 and remand the matter back to the Commissioner and Secretary to the Government of Assam in the Secondary Education Department for a fresh consideration of the representations of both the writ petitioner and the respondent No.3 and to pass a reasoned order thereon as to who between the two would be more eligible to be posted as the subject teacher in history in the Gopal Boro HS School, Guwahati. At the same time, we also require the Commissioner and Secretary to take note of the first requirement of the order dated 16.09.2019 of the Division Bench i.e., firstly it would be considered whether both the writ petitioner and the respondent No.3 can be accommodated in the Gopal Boro HS School, Guwahati and if not as required by the order dated 16.09.2019 in WA No.328/2018, as to whether either one between the petitioner and the respondent No.3 can be accommodated in any other school in Guwahati.

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11. Accordingly upon arriving at his decision, if any, that either the petitioner or the respondent No.3 would be accommodated in the Gopal Boro HS School, the Commissioner would make a further endeavour to find out the existence of suitable vacancy in any other similar school in Guwahati and consider the posting of the other in any such vacant post. While looking into the vacancy position, the Commissioner and Secretary may take note of the present vacancy position as well as the vacancy position that may occur in the immediate future in any other school in Guwahati or its vicinity.

12. The reasoned order be passed within a period of one month from the date of receipt of a certified copy of this order and till such a reasoned order is passed, the status-quo as on today be maintained.

13. In order to arrive at its conclusion as to whose requirement between the writ petitioner and the respondent No.3 would be more for the single post of subject teacher in history in the Gopal Boro HS School, as required by the earlier orders, the Commissioner and Secretary may also give a personal hearing to both the writ petitioner and the respondent No.3 in order to ascertain the respective requirements. For the purpose, the Commissioner and Secretary may inform the place and time of such hearing to the respective parties.

14. It is being informed that presently there is no Commissioner and Secretary in the Secondary Education Department and the Department is now being looked after by the Secretary. Accordingly, the expression 'Commissioner and Secretary' be read to be 'Secretary to the Government of Assam in the Page No.# 9/9

Secondary Education Department'.

15. Writ petition stands allowed in the above terms.

JUDGE

Comparing Assistant