WP(C) No.4529 of 2016 B E F O R E HON BLE MR. JUSTICE SUMAN SHYAM 20.01.2017 Heard S. K. Talukdar, learned counsel for the writ petitioner. Also heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R. M. Choudhury, learned counsel appearing on behalf of respondent No.4. Mr. A. K. Bhuyan, learned Standing Counsel, BTC, along with Mr. L. N. Dihingia, learned Govt. Advocate, Assam are present on behalf of the official respondents. The order dated 20.07.2016 by means of which the petitioner has been transferred from Tihu-Barama Circle and posted as Sub- Inspector of Schools in the Jalah Part-II Circle, Mushalpur is under challenge in the present writ petition. While the writ petitioner was serving as Sub-Inspector of Schools, Barama Circle, by an order dated 07.05.2012 issued by the Deputy Secretary to the Government of Assam, Education (Ele.) Department, he was allowed to hold the charge of Block Elementary Education Officer (BEEO),, Tihu-Barama Education Block along with financial power under F.R.49(c) for a period of three months or till such time the regular BEEO was posted, whichever was earlier. Pursuant to the aforesaid order dated 07.05.2012 the petitioner took over charge of BEEO of the Tihu- Barama Block. Thereafter, the Deputy Secretary to the Government of Assam, Education (Ele.) Department, had issued another order dated 21.08.2012 in continuation to the earlier notification dated 07.05.2012 continuing the writ petitioner as in-charge BEEO of the Tihu-Barama Education Block along with financial powers under F.R. 49(c) with effect from 08.08.2012. In terms of the notification dated 07.05.2012, as continued by the subsequent order dated 21.08.2012, WP(C) No.4529/2016 Page 1 of 5
the writ petitioner continued to function as the BEEO of the Tihu- Barama Education Block until such time he was transferred and posted at Jalah Part-II Circle under the Deputy Inspector of Schools, Mushalpur by the impugned order dated 20.07.2016. Mr. S. K. Talukdar, learned counsel for the petitioner, submits that part of the Tihu-Barama Education Block falls outside the BTC area and that is the reason why the earlier notification dated 07.05.2012 was issued by the Government of Assam and not the BTC authorities. Since the entire Tihu-Barama Education Block is not covered by the BTC area, hence, in the absence of any order issued by the Government of Assam modifying the earlier orders dated 07.05.2012 as well as 21.08.2012, the respondent No.3 (BTC authority) did not have any jurisdiction or competence to issue the impugned order dated 20.07.2016. Mr. Talukdar further contends that the order dated 20.07.2016 has been issued not in the exigencies of public service but with the malafide intention of extending undue favour to the respondent No.4 who is much junior to the writ petitioner in service. Resisting the submissions made by learned counsel for the petitioner, Mr. K. N. Choudhury, learned Senior Counsel, appearing on behalf of the respondent No.4, contends that the order dated 07.05.2012 was issued by way of an internal arrangement and the petitioner cannot claim any right to continue to hold the office of BEEO since he is holding the substantive post of Sub-Inspector of Schools. Moreover, the petitioner has already completed more than four years at Tihu-Barama Circle and therefore, was already due for transfer. Strongly refuting the allegation of malafide brought against his client, Mr. Choudhury submits that the charges levelled in the writ petition are totally false and would be established from the record of the case. The learned senior counsel further submits that no prejudice has been caused to the petitioner due to the WP(C) No.4529/2016 Page 2 of 5
order dated 20.07.2016 and the petitioner does not have a right to continue in a particular place of posting since transfer is an incidence of service. In support of his aforesaid argument Mr. Choudhury has placed reliance upon a decision of the Hon ble Supreme Court in the case of Union of India and others vs. Janardhan Debanath and another reported in (2004)4 SCC 245. Mr. A. K. Bhuyan, learned Standing Counsel, BTC, has produced the records for perusal by this Court. I have considered the submissions made by the learned counsel for the parties and have also perused the materials on record. From the records it appears that taking note of the acute shortage of officers in the BTC area under the Education Department, a proposal was mooted for transfer of several Inspectors of Schools with the approval of the Government of Assam. Record further reveals that no objection certificate was obtained the Government of Assam pursuant to which the proposals for transfer of a number of officers were processed by the BTC authorities. It also appears from the records that the services of the writ petitioner as well as the respondent No.4 being at the disposal of the BTC authorities, were under the administrative control of the respondent No.3 during the time when the order of transfer, as mentioned above, were issued. Therefore, it is evident that respondent No.3 has the authority and competence to issue the order dated 20.07.2016. Even if the initial orders dated 07.05.2012 and 21.08.2012 were issued by the Deputy Secretary to the Government of Assam, that by itself, in my opinion, would not oust the jurisdiction of the BTC authorities to issue subsequent order of transfers involving the officials who were placed under the administrative control of the BTC authorities. That part, record further reveals that the impugned order dated 20.07.2016 had been furnished to the Director of Elementary Education, Government of WP(C) No.4529/2016 Page 3 of 5
Assam, Kahilipara, Guwahati, who is duly represented by the learned Government Advocate, Assam. However, the State counsel has submitted that the Government of Assam does not have any objection to the impugned order of transfer dated 20.07.2016. As such, the submission made by Mr. Talukdar that the impugned order dated 20.07.2016 is bad for want of jurisdiction and competence on the part of the respondent No.3 to issue the same does not merit acceptance by this Court and is accordingly rejected. Coming to the question of malafides alleged against the respondents, from the perusal of the record I find that the BTC authorities had initiated a move to transfer a number of officials serving under the Education Department but due to the involvement of some of the officials with the NRC duty many such transfer orders could not be affected as a result of which certain internal arrangements had to be made by the authorities. There is nothing on record to indicate that the impugned order dated 20.07.2016 has been issued only to accommodate the respondent No.4. In view of the above, the writ petitioner has failed to substantiate the plea of mala fide warranting interference by this Court. As regards the plea of seniority raised by the petitioner, the said argument does not have any relevance in the facts of the present case since in this proceeding this Court is only concerned with the legality and validity of the transfer order dated 20.07.2016. As noted above, the petitioner has already completed four years at the Tihu-Barama Circle and therefore, his transfer to a different location was automatically due. The petitioner s counsel has failed to indicate as to in what manner his client would suffer prejudice due to the order dated 20.07.2016. WP(C) No.4529/2016 Page 4 of 5
Law his firmly settled that the scope of interference with the order of transfer in exercise of power under Article 226 of the Constitution of India is extremely limited and unless such transfer is actuatd by malice or involves any alteration in the condition of service of an employee thereby visiting him with any adverse consequence including any penal measure, utmost latitude should be left with the department concerned to decide as to where its officials should be posted. In the present case, I do not find from the record that the order dated 20.07.2016 has in any way adversely impacted the conditions of service of the petitioner nor is the said order found to be in violation of the norms followed by the Government in the matter of transfer. For the reasons stated herein above, it is held that there is no merit in this writ petition and the same is accordingly dismissed. No order as to cost. JUDGE T U Choudhury WP(C) No.4529/2016 Page 5 of 5