High Court · 2009

I have heard Mr. B.C. Das, Senior Advocate assisted by Mr. B. Chakrabort y, Advocate for the petitioner; Ms U. Baruah, Senior Advocate for the Respondent No.4 and Mr. M.R. Pathak, learned Standing Counsel, Education Department, Govt. of Assam. The parties being represented and the learned Standing Counsel havin g produced the relevant official records, this petition is being disposed of aft er full dress hearing at the motion stage. The petitioner’s pleaded version, in short, is that he having joined the Education department of the State (hereinafter referred to as the Department) a s Asstt. Inspector of Schools’ in the year 1992 was duly promoted to the rank o f Deputy Director of Secondary Education in the year 2005 which is equivalent to that of the Inspector of Schools’/District Elementary Education Officer. He wa s posted as Deputy Director of Secondary Education, Kahilipara, Guwahati in the year 2006 which he accordingly joined on 21.09.2006. In view of the impending elections to the Lok Sabha, the Election Commis sion of India (hereinafter for short referred to as the Commission) to ensure th at the same is conducted in a free and fair manner has issued certain guidelines on 04.02.2009, inter alia in the matter of transfer and posting of officers con nected with the elections, directly or indirectly. In this premise, the impugned notification has been issued whereby the petitioner has been transferred from h is present post to that of the Inspector of Schools’, Goalpara. According to th e petitioner, the impugned notification though dated 19.02.2009, had been offici ally released on 25.02.2009. Being aggrieved, he initially lodged verbal represe ntations against his transfer and eventually submitted a written request on 05.0 3.2009 before the Commissioner & Secretary to the Govt. of Assam, Education(s) D epartment contending, inter alia, that in view of the essential prerequisites f or application of the Commission’s guidelines, he is not liable to be transferr ed thereunder and that even otherwise, his dislodgement from the present place o f posting would dislocate the studies of his daughter who is scheduled to appear in the H.S.L.C. final examination next year. The petitioner has also referred to a proceeding being WP(C) 841/2009 instituted before this court by one Smt. Pr otima Saikia Gogoi also transferred by the same notification to be posted in his place, in which vide order dated 27.02.2009, the same has been stayed. As insp ite of the above, the Respondent No. 4 initially transferred by the same notific ation as Deputy Director of Elementary Education, Guwahati has been diverted to his post, he seeks judicial intervention through the instant application. The State respondents have not filed any affidavit. The Respondent No.4 while generally reiterating the above facts bearing on the impugned transfer, h as averred that pursuant to the notification to the said effect he had handed ov er the charge of the office of the Inspector of Schools’, Karimganj on 03.03.200 9 to his successor and had reported at the office of the Director of Elementary Education, Assam on 05.03.2009 to be told about the interim order dated 27.02.20 09 passed by this court in W.P.(C) No. 841/2009 initiated by Smt. Protima Saikia Gogoi and the consequential order dated 04.03.2009 of the department staying t he transfer of Smt. Protima Saikia Gogoi Inspector of Schools’ K.D.C., Guwahati and Dr. Asomi Gogoi, Deputy Director, Elementary Education until further orders. The answering respondent has averred that being distraught, he submitted a repr esentation on 05.03.2009 before the Commissioner Secretary Education (E & S), Department imploring the latter to devise an alternative arrangement for his pos ting in view of his release from his earlier post on transfer. The deponent has further asserted that it was thereafter, that in partial modification of the no tification dated 19.02.2009 viz-a-viz him, he was posted as Deputy Director of S econdary Education, Assam vide notification ASE 59/09/23 dated 07.03.2009. Acco rding to him, incidentally by this order No.310 dated 07.03.2009 of the Director of Secondary Education, Assam, the petitioner was released from the post of Dep uty Director of Secondary Education, Assam, so as to enable him to join the new assignment following his transfer as Inspector of Schools’ Goalpara. The answer ing respondent has maintained that pursuant to the notification dated 07.03.2009 altering his place of posting as Deputy Director of Secondary Education, Assam he also assumed the unilateral charge of the said office in the afternoon of 07. 03.2009. He has endorsed the impugned notification and has pleaded that the par tial modification thereof changing his place of posting was called for in the fa cts and circumstances of the case. Mr. Das has strenuously argued that as the petitioner is not transferabl e as per the stipulations contained in the Election Commission’s guidelines (her einafter also referred to as guidelines in short), the impugned notification s o far as it relates to him is non est in law. As the home district of the pe titioner is at Lakhimpur he having been posted as Deputy Director of Secondary E ducation, Assam at Guwahati, on 21.09.2006 is not due to be transferred not havi ng completed three years at his present place of posting, he urged. The learned Senior Counsel contended that as per the guidelines, the petitioner is not trans ferable being posted in an office of the headquarter of the department. The l earned Senior Counsel has submitted that, the impugned order of transfer in the facts and circumstances of the case being impelled by irrelevant considerations is thus liable to be adjudged as null and void. Mr. Pathak in reply, has argued that as the process for transfer of the officers named in the impugned notification had been initiated much before the g uidelines were introduced, the same is not exclusively governed thereby and ther efore the petitioner’s contentions are untenable in law and on facts. The trans fers having been made in public interest, having regard to the limited scope of interference by this court therewith in the exercise of its writ jurisdiction, t he petition is liable to be dismissed. Endorsing the above stand, Ms Baruah has urged that the Respondent No.4 pursuant to his transfer having been released from his earlier post on 03.03.200 9, he has been rightly allowed to join the office of Deputy Director of Secondar y Education, Assam in view of the non vacation of the post of Deputy Director of Elementary education by Dr. Asomi Gogoi as a consequence of the stay of the tra nsfer of Smt. Protima Saikia Gogoi, Inspector of Schools’, Kamrup. The learned counsel contended that as already the Respondent No.4 has taken over the unilate ral charge of the office of the Deputy Director of Secondary Education, Assam as authorised by the notification No. ASE 59/09/23 dated 07.03.2009, the challenge laid by the petitioner being dehors in merit, is liable to be rejected. The rival pleadings and the competing arguments based thereon have been duly considered. Noticeably, the parties are not in issue qua the prescripts of the Election Commission guidelines. A plain reading thereof attests the underly ing objective of ensuring a free and fair elections for which officers who are c onnected with the conduct of elections in the State are not retained in their ho me districts or places where he/she has completed three years during the past fo ur years or would be completing three years on or before 31.05.2009. Clause iii of the guidelines while mandates detailed review for the abov e purpose, enjoins that the instructions relatable thereto would not apply to of ficers posted in the State headquarters of the departments concerned. The assertion of the petitioner, that his home district is Lakhimpur a nd that he is posted in an office in the State headquarter of the department wit h effect from 21.09.2006 has not been disputed by any of the respondents. In thi s view of the matter, the exigencies of the transfer of the petitioner as an imp erative under the guidelines is not established in the facts of the instant case . In other words, by applying the criteria enumerated in the guidelines, the pe titioner need not be obligatorily transferred for the purpose of conducting free and fair elections. This is, more so, in absence of any material on record to establish that he is in any way connected with the conduct of elections in the S tate. The official records bearing No. ASE 59/2009 disclose that, the process for transferring 5 officers (not including the petitioner) had been initiated in the 1st week of February, 2009 acting on their representations and or recommend ations of administrative authorities of various levels and of different State de partments/autonomous bodies. The Office note dated 17.02.2009 while processing t heir cases referred to the Election Commission’s guidelines enumerating the cate gories of officers who according thereto ought to be transferred. In response t o a query made by the Chief Electoral Officer, Assam, the department had drawn u p a list of officers serving in their home districts and also at stations for mo re than three years wherein the name of the petitioner does not figure. Though, the concerned departmental authorities seemed to be aware of the norms applicab le for identifying officers for transfer in terms of the guidelines and had draw n up list of officers serving in their home districts, as well as, in places for more than three years or were likely to complete three years on 31.05.2009, the petitioner, though on admitted fact is otherwise beyond the purview of the gui delines was by the impugned notification transferred from his office of the Depu ty Director of Secondary Education as Inspector of Schools’, Goalpara. The recor ds do not divulge any convincing or persuasive reason for the departure viz-a-vi z the petitioner. No other overwhelming public interest, in addition to the one sought to be espoused by the guidelines is also discernible in the records to j ustify his transfer. It is also not decipherable therefrom that, the petitioner had to be unavoidably posted out in absence of any other alternative in order t o implement the guidelines. The records do not reveal any exercise of that kind , though the departmental authorities were aware of the selective attributes of the guidelines qua transfers contemplated thereby. Though, the impugned notific ation professes that the transfers effected thereby, have been in deference to t he guidelines as well as public interest, at least so far as the petitioner is concerned, the records do not bear out any supervening public interest sans the guidelines to sustain his transfer. In other words, the plea of the respondents that the transfer of the petitioner is not occasioned by the guidelines, but by overriding public interest, is not substantiated by the records and therefore c annot be upheld. On the other hand, as the contemporaneous inputs available dem onstrate that the petitioner though not liable under the guidelines has been tra nsferred by applying the same, the impugned notification so far as it relates to him cannot be sustained in law. In the result, the petitioner’s transfer from the office of the Deputy D irector, Secondary Education, Assam at Guwahati as Inspector of Schools’, Goalpa ra is interfered with. The impugned notification dated 19.02.2009 to that effec t, therefore, stands annulled. Consequentially, the transfer of the Respondent No.4 to the post of Deputy Director, Secondary Education, Assam Guwahati by the notification No. ASE. 59/2009/23 dated 07.03.09 is quashed. The assertion that t his Respondent has in the mean time been released from his earlier post and has taken over the unilateral charge of this office on the same date in the face of the above determination is of no consequence. The petition thus, is allowed. No costs.