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1999 DIGILAW 190 (GAU)

Jogeswar Borah v. State of Assam

1999-06-03

A.K.PATNAIK

body1999
In this application under Article 226 of the Constitution, the petitioner has challenged the order dated 18.2.1998 of the Secretary to the Govt of Assam, Education Department, by which the petitioner was transferred and posted as Research Officer in the office of the Additional Director of Education (Hills) Haflong. 2. The facts briefly are that the petitioner was appointed on regular basis as Research Officer in the Directorate of Higher Education, Assam, by order dated 9.5.1994 and since then he continued to work as Research Officer in the Directorate of Higher Education, Assam, at Guwahati. Anticipating his transfer from Guwahati, the petitioner filed Civil Rule No. 4233 of 1997 before this Court and by order dated 8.9.1997 this Court disposed of the said civil rule with the direction that the Secretary to the Govt of Assam, Education (Higher) Department will consider the representation of the petitioner against the proposed transfer and pass appropriate orders within a period of 15 days from the date of receipt of a certified copy of the order dated 8.9.1997 of this Court. Aggrieved by the said order dated 8.9.1997 of this Court, the respondent No.7 preferred Writ Appeal No.535 of 1997 apprehending that if the representations of the petitioner were considered, the proposed transfer of the respondent No.7 from Haflong to Guwahati may be affected. The Division Bench by order dated 26.9.1997, however, took a view that since no order had been passed by the Govt interfering with or modifying the proposed order of transfer of the respondent No.7, there is no reason for preferring the appeal against the order of the learned Single Judge passed in CR No.4233 of 1997 and that the appeal was purely academic in nature. By the said order dated 26.9.1997, however, the Division Bench reserved liberty to the respondent No.7 to approach the Court as and when the proposed order of transfer was cancelled or modified affecting his rights. Thereafter, by order dated 29.9.1997, the Commissioner and Secretary to the Govt of Assam, Education Department, revoked the transfer order of the petitioner to Haflong and of the respondent No.7 to Guwahati. Thereafter, by order dated 29.9.1997, the Commissioner and Secretary to the Govt of Assam, Education Department, revoked the transfer order of the petitioner to Haflong and of the respondent No.7 to Guwahati. The respondent No. 7 then filed Civil Rule No. 5001 of 1997 before this Court and the said civil rule was disposed of by the learned Single Judge directing the authorities to dispose of the representations filed by the petitioner within a period of 10 days and further directed that the authorities shall take into consideration the facts and circumstances of the case of the petitioner as well as respondent No.7. Pursuant to the said direction of the learned Single Judge in Civil Rule No.5001 of 1997, the Secretary to the Govt of Assam, Education Department, considered the cases of both the petitioners and the respondent No.7 and ordered that the respondent No.7 be transferred and posted as Research Officer in the Directorate of Education (Higher), Guwahati and the petitioner be transferred and posted as Research Officer in the office of the Additional Director of Education (Hills), Assam, Haflong. Aggrieved by the said order dated 18.2.1998 of the Secretary to the Govt of Assam, Education Department, the petitioner has filed this writ petition for appropriate relief. 3. Mr. N. Dutta, learned counsel for the petitionerf submitted that one of the points raised by the petitioner before the Secretary to the Govt of Assam, Education Department, against his transfer from Guwahati to Haflong was that the office of the Additional Director of Education (Hills), Assam, Haflong to which the petitioner was sought to be transferred was entrusted to NC Hills Autonomous District Council and that under the office memorandum dated 31.12.1996 of the Govt of Assam, Hills Areas Development Department and in particular paragraph H thereof, consultation of the Autonomous District Council by the State Govt was necessary before release of the respondent No.7 and before deputing the petitioner in place of the respondent No.7. But admittedly no such consultation had taken place. Mr. Dutta explained that this point raised by the petitioner was summarily rejected by the Secretary to the Govt of Assam, Education Department in the impugned order dated 18.2.1996 with the observation that as on 15.5.1997, the office of the Additional Director of Education (Hills), Assam, Haflong had not been entrusted to the NC Hills Autonomous District Council. Mr. Mr. Dutta explained that this point raised by the petitioner was summarily rejected by the Secretary to the Govt of Assam, Education Department in the impugned order dated 18.2.1996 with the observation that as on 15.5.1997, the office of the Additional Director of Education (Hills), Assam, Haflong had not been entrusted to the NC Hills Autonomous District Council. Mr. Dutta vehemently argued that since the original order of transfer of the petitioner to the office of the Additional Director of Education (Hills), Assam, Haflong and of the respondent No.7 from the office Additional Director of Education (Hills), Assam, Haflong has been passed. On 11.9.1997, the date 15.5.1997 has no relevance at all. Mr. Dutta further submitted that as on 11.9.1997 when the aforesaid transfer order was passed, the said office of the Additional Director of Education (Hills), Assam, Haflong, had been placed under the administrative control of the NC Hills Autonomous District Council as would be clear from the WT message dated 12.8.1997 from the Secretary to the Govt of Assam, Education Department, a copy of which has been annexed to the writ petition as Annexure H. 4. Mr. BK Sharma assisted by Mr. BM Sarma, learned counsel for the respondent No. 7, on the other hand, referred to the notification dated 25.9.1996 of the Govt of Assam, Hills Areas Development Department annexed to the affidavit-in-opposition of the respondent No.7 to show that only primary education upto the level of Higher Secondary Education and Adult Education under the subject 'Education' had been transferred to NC Hills Autonomous District Council. He further submitted that so far as Higher Education is concerned, the said subject had been retained by the State Govt and as the petitioner was working as Research Officer which fell under the Directorate of Higher Education, the a State Govt was fully competent to transfer the respondent No. 7 from Haflong to Guwahati without consultation with the NC Hills Autonomous District Council. Mr. B Goswami, GA, Assam, referred to the averments made in affidavit-in-opposition of respondent Nos 2 and 3 and submitted that although administrative control of the staff of the office of the Additional Director of Education (Hills), Haflong had been vested with the aforesaid Council, the Govt as the appointing authority had the power to transfer such officers and that the allegations made against the Govt relating to transfer are all baseless. Mr. Mr. BD Das, learned counsel for the respondent Nos 4 and 6, submitted that the stand of the NC Hills Autonomous District Council is that no officer can be released from an office under administrative control of the Council without the consent of the Council and similarly no officer can be posted in an office under the administrative control of the Council without consultation with the Council. 5. Paragraphs 8 and 9 of the affidavit-in-opposition filed on behalf of the respondent Nos 2 and 3 ,$worn by Shri Karuna Kumar Rajkhowa, Deputy Secretary to the Govt of Assam, Education (Higher) Department, are extracted herein below: “8. That the averments matter in paragraphs 9 and 10 of the writ petition are incorrect and as such not admitted by this deponent. It is also stated that the Govt as the appointing authority is empowered to transfer its officials including the present petitioner within its jurisdiction.” It is also relevant to state that certain departments including the Education has been transferred entrusted to the Autonomous Hill District Council so far its territorial jurisdiction is concerned. Although administrative control of the staff of the office of the Additional Director of Education (Hills) has been vested with the Council but the Govt as the appointing authority has the power to transfer such official. The entire allegations brought against the Govt are baseless and the same are brought only to make out a case in favour of the petitioner. 9. That with regard to the statements made in paragraph 11 and 12 of the writ/petition, this deponent begs to state that the contentions made therein are matters of record and the deponent does not admit anything which is not borne out of records. 9. That with regard to the statements made in paragraph 11 and 12 of the writ/petition, this deponent begs to state that the contentions made therein are matters of record and the deponent does not admit anything which is not borne out of records. In this connection, the deponent further begs lo state that the concerned officer under order of transfer from the post under the control of the District Council should be released with the approval of the District Council to join in his new place of posting.” While in paragraph 8 a stand has been taken by the Govt that the Govt as the appointing authority has the power to transfer any staff of the office of the Additional Director of Education (Hills), in paragraph 9 of the said affidavit-in-opposition, the Govt has conceded that the concerned officer under order of transfer from the post under the administrative control of the District Council could be released with the approval of the District Council to join in his view place of posting. In my considered opinion, both the posting and the release of officers in any office under the administrative control of the District Council has to be in consultation of the District Council and this would be evident from a bare a reading of paragraph H of the office memorandum dated 31.12.1996 of the Govt of Assam, Hills Areas Department which is to the following effect: “(H) The State Govt shall consult the Council, while posting and transferring the officers of the entrusted subjects, departments in or out of the Council. Under no circumstances, the officers and staff, not released by the Council shall be accepted by the State Govt before deputing any officer or staff the Govt shall provide a panel of names enabling the Council to select and accept the same. Under no circumstances, the officers and staff, not released by the Council shall be accepted by the State Govt before deputing any officer or staff the Govt shall provide a panel of names enabling the Council to select and accept the same. The State Govt shall take necessary action under the relevant rules and procedure against the officers and staff, found involved in any prima facie case of misconduct/dereliction of duty, etc, during the period of deputation to the Council even after they are repatriated to the State Govt.” The aforesaid paragraph H of the office memorandum dated 31.12.1996 does not in any way take away the power of the State Govt to transfer an officer working under the State Govt to and from an office under the administrative control of the District Council, but it only puts a limitation on such power by providing that such transfer and posting to and from an office under the administrative control of the District Council will be in consultation with the District Council. It is clear from the copy of the WT message dated 12.8.1997 (Annexure H) that prior to the order of transfer dated 11.9.1997, the office of the Additional Director of Education (Hills) Haflong had been placed under the administrative control of the NC Autonomous District Council. Hence as on 11.9.1997, the respondent No. 7 who was working in the office of the Additional Director of Education (Hills), Haflong had been placed under the administrative control of the NC Autonomous District Council. Hence as on 11.9.1997, the respondent No.7 who was working in the office of the Additional Director of Education (Hills), Haflong, could be released only by the District Council and after such release the officer or staff could be accepted by the State Govt as per the aforesaid paragraph H of the office memorandum dated 31.12.1996. Similarly, as on 11.9.1997, the State Govt was required to consult the District Council while posting and transferring the petitioner, to the office of the Additional Director of Education (Hills), Haflong. Since admittedly, the NC Hills District Council has not been consulted before the petitioner was transferred and posted in the office of the Additional Director of Education (Hills), Haflong, the transfer of the petitioner was illegal and was liable to be quashed. Since admittedly, the NC Hills District Council has not been consulted before the petitioner was transferred and posted in the office of the Additional Director of Education (Hills), Haflong, the transfer of the petitioner was illegal and was liable to be quashed. Similarly, since the respondent No. 7 has not been released by the Council, he could not be accepted by the State Govt as per the said paragraph H of the office memorandum dated 31.12.1996. 6. Mr. BK Sharma assisted by Mr. BM Sarma, learned counsel for the respondent No.7, however,- stated that the respondent No. 7 had been posted at Haflong since 1991 and has been asking for transfer out of Haflong for last several years and that after the impugned order was passed, the respondent No.7 has already joined at Guwahati under the Directorate of Higher Education on 17.3.1998 and has been receiving his salary at Guwahati.Cbnsideijng these special circumstances as mentioned by Mr. BK Sharma, I am of the opinion that the respondent No. 7 should not be disturbed from his present place of posting at Guwahati. 7. So far as the petitioner is concerned, admittedly, the NC Hills Autonomous District Council has not been consulted before his posting. As has been held above, consultation of the said District Council was absolutely necessary under paragraph (H) of the office memorandum dated 31.12.1996, if he was to be posted in the office of the Additional Director of Education (Hills), Haflong, which is under the administrative control of the said District Council. It may also be stated that if the District Council has not been consulted by the State Govt as per the said paragraph (H) of the office memorandum dated 31.12.1996 before posting the petitioner in the office of the Additional Director of Education (Hills), Haflong, it was natural for the petitioner to presume that he would not be accepted by the District Council and this has been confirmed by the stand of the NC Hills District Council discussed above that no officer can be posted in any office under its control without consulting the District Council. It is stated by Mr. N Dutta, learned counsel for the petitioner that the petitioner for this reason has also not been able to joint at his place of posting at Haflong and has not received his salary since February 1998. It is stated by Mr. N Dutta, learned counsel for the petitioner that the petitioner for this reason has also not been able to joint at his place of posting at Haflong and has not received his salary since February 1998. This is a case where the transfer order of the petitioner was illegal on account of violation of the provisions of paragraph (H) of the office memorandum dated 31.12.1 996 and the aforesaid illegality was not on account of any fault on the part of the petitioner but that of the State Govt. Hence the State Govt was liable to pay salary of the petitioner for the period from February 1998 till a fresh order of posting is passed by the State Govt. 8. In the result, this writ petition is disposed of with the direction that the respondent Nos 1 and 2 shall issue fresh orders of posting in respect of the petitioner within a period of 15 days from the date of receipt of a certified copy of this order from the petitioner and with the direction that for the period from February 1998 till a fresh order is passed by the State Govt, the petitioner would be paid his salary. But considering the facts and circumstances of the case, the parties shall bear their own costs.