High Court · 2009

The order dated 14/8/2008 of the Director of Elementary Educatio n, Assam, transferring the petitioner to the office of the Deputy Inspector of S chools, Bilasipara, is under assailment in the instant proceeding. Thereby the r espondent No. 4 had been transferred to his post. This Court while issuing notic e by order dated 8/9/2008 had suspended the operation of the order impugned. 2. I have heard Mr. J. Abedin, learned Counsel for the petitioner, Mr. M.K. Mishra, learned Standing Counsel, Education Department for the official respondents and Mr. A. M. Mazumdar, Sr. Advocate assisted by Mr. M. U. Mondol, Advocate for the respondent No. 4. 3. The facts in short constituting the pleaded case of the petition er are that at the relevant time the petitioner has been holding the post of Sr. Assistant in the office of the District Elementary Education Officer, Goalpara, having been posted as such on promotion by the order dated 8/5/2007 passed by t he Director of Elementary Education, Assam. By an order dated 1/8/2008 of the sa me authority, one Shri Chatradhar Nath, Sr. Assistant in the office of the Deput y Inspector of Schools, South Salmara, had been transferred to the office of the Deputy Inspector of Schools, Goalpara, vice the respondent No. 4. Though pursua nt thereto, Shri Chatradhar Nath was released and had accordingly joined the new place of posting i.e. the Deputy Inspector of Schools, Goalpara, the respondent No. 4 was neither released nor did he comply with the said order. Instead in pa rtial modification thereof, the impugned order was passed whereby the respondent No. 4 was diverted to the post held by him. The petitioner has alleged that the impugned order is a move to accommodate the respondent No. 4 and is not in publ ic interest. As the petitioner’s representation dated 22/8/2008 against his tran sfer though submitted before the Commissioner and Secretary to the Government of Assam, Education Department, did not receive any response, he has approached th is Court. The interim order passed by this Court as above was given effect to be latedly by order dated 2/3/2009 of the Director in-Charge of Elementary Educatio n, Assam. 4. In his counter, the Director of Elementary Education, Assam, has pleaded that the petitioner had been serving in the establishments of the Deput y Inspector of Schools and the District Elementary Education Officer, Goalpara, since 1974 in various capacities namely Grade IV, Junior Office Assistant and Se nior Office Assistant and while passing the impugned order the above fact was al so taken note of. While insisting that the petitioner’s transfer is in public in terest as well as in administrative exigency, the answering respondent has maint ained that the arrangement is convenient to the petitioner has thereby he had be en transferred to Bilasipara which is a place near to that of posting of his wif e. With reference to the order dated 1/8/2008 whereby the respondent No. 4 had b een transferred to the office of the Deputy Inspector of Schools, South Salmara, the deponent has stated that the same stood modified by taking note of his repr esentation dated 7/8/2008 praying for cancellation thereof on the ground of his ill-health as well as the demise of his mother and elder brother in the immediat e past saddling on him the responsibility of maintaining both the families. This was followed by another representation by him on 12/8/2008 containing an endors ement of the Minister of Irrigation, Soil Conservation and Fishery, Assam, dated 7/8/2008 to the Director of Elementary Education, Assam, to consider his reques t to stay the order of transfer. The answering respondent also referred to the o ffice note dated 13/8/2008 contained in File No. Apptt.(A)-3/97 of the said Dire ctorate disclosing a verbal order of the Director of Elementary Education, Assam , to transfer the respondent No. 4 to the office of the District Elementary Educ ation Officer, Goalpara, in place of the petitioner following which the impugned order was passed. While denying stoutly the allegation of partisan disposition towards the respondent No. 4 to the prejudice of the petitioner, it has been con tended that he had not been denied his existing grade, scale of pay as well as h is seniority in service. On the other hand it has been imputed that though pursu ant to the impugned order, the petitioner had been released from his post in the office of the District Elementary Education Officer, Goalpara, on 19/8/2008, he though aware of the same withheld it from the Court and is thus guilty of suppr ession of facts. On the other hand, it has been averred that the respondent No. 4 in compliance of the aforementioned order had joined the office of the Distric t Elementary Education Officer, Goalpara, on the very same date. The answering r espondent has asserted on oath that the Xerox coy of the order dated 8/9/2008 of this Court containing the direction for interim restraint had been placed befor e him only on 3/3/2009. However on the basis of a telephonic information thereof received from the learned Standing Counsel, Education Department, Guwahati, the impugned order was kept in abeyance on 2/3/2009. The respondent No. 4 in his application seeking alteration/modif 5. ication/vacation of the interim order (registered as Misc. Case 685/2009) has re iterated the imputation of suppression of facts by the petitioner. He has reaffi rmed to have submitted a representation on 7/8/2008 highlighting the fact of his illness and the death of his mother and his brother on a consideration whereof the impugned order had been passed. He has added that thereafter on 17/1/2009 hi s sister in law Sirsun Begum had also died out of a car accident. According to t his respondent, following his transfer by the order dated 1/8/2008, he was relea sed from the office of the Deputy Inspector of Schools, Goalpara, and was on med ical leave thereafter. By order dated 18/8/2008 of the Deputy Inspector of Schoo ls, Goalpara, he was directed to join in the office of the District Elementary E ducation Officer, Goalpara, pursuant to the impugned order of transfer dated 14/ 8/2008, which he accordingly did on 19/8/2008. Though his transfer to the office of the District Elementary Education Officer, Goalpara, had thus been implement ed on 19/8/2008, this fact was withheld from this Court by the petitioner. The a nswering respondent has, therefore, alleged want of bonafide on his part. 6. Mr. Abedin has argued that as a conjoint reading of the orders d ated 1/8/2008 and 14/8/2008 would glaringly demonstrate that the later move is t o favour the respondent No. 4 at the cost of the petitioner and not to cater to the exigent public interest, the same is liable to be interfered with. The petit ioner having been posted in the office of the District Elementary Education Offi cer, Goalpara, only in the month of May 2007, his dislodgment therefrom is also opposed to the letter and spirit of the transfer guidelines of the State employe es prescribing normally a tenure of three years at one station. The impugned ord er being an yield of an unwarranted interference by an external agency, it is vi tiated by gross arbitrariness and malafide as well, he urged. 7. The learned Standing Counsel, Education Department, has argued p er contra that the impugned order having been passed on a due consideration of t he representation submitted by the respondent No. 4 ventilating his genuine grie vances, the same cannot be repudiated as illegal and arbitrary. He sought to end orse his stand on the basis of the official records being File No. Apptt. (A)-3/ 1997 and EHA-212/08/Pt. And EHA-212/08. 8. Mr. Mazumdar while maintaining that transfer is an incidence of service has argued that as in the instant case the petitioner had served at Goal para for nearly 34 years in various capacities, on a consideration of all releva nt aspects, acting on the representation of the respondent No. 4 highlighting hi s difficulties, the impugned order was validly passed. According to him, the end orsement of a Minister on the representation of the respondent No. 4 per se does not vitiate the process if the consequential action is otherwise informed with reason and logic and not adverse to public interest. 9. To comprehend appropriately the rival pleadings and the argument s based thereon, the official records produced have been duly perused. That the impugned order of transfer was preceded by the order dated 1/8/2008 whereby the respondent No. 4 had been posted out to the office of the Deputy Inspector of Sc hools, South Salmara (Mankachar) vice Shri Chatradhar Nath is a matter of record . The said respondent thereafter, as the records reveal, had on 7/8/2008 submitt ed a representation before the Director of Elementary Education, Assam, requesti ng withdrawal of the order. Therein he inter alia mentioned about his illness an d ongoing medical treatment for hepatitis and other diseases as well as the demi se of his mother on 11/5/2008 and his elder brother Sirajul Islam on 01/08/2008. He underlined that as a result of these two tragedies apart from his distressed mental condition, he was required to sustain both these families for which his movement from his place of posting would create serious inconvenience and disloc ation. His another representation also substantially identical contained an endo rsement of the Minister of Irrigation, Soil Conservation and Fishery, Assam, as follows. (cid:28)DEE Please consider to stay his transfer order. Sd./- Illegible 7/8/2008 (cid:29) The office note dated 13/8/2008 of the File No. Apptt.(A)-3/97 c 10. ontains a reference of a verbal order of the Director of Elementary Education, A ssam, recommending transfer of the respondent No. 4 to the office of the Distric t Elementary Education Officer, Goalpara, in place of the petitioner who it was suggested be transferred to the office of the Deputy Inspector of Schools, Bilas ipara, against a vacant post in modification of the earlier order dated 1/8/2008 . The arrangement being approved by the concerned departmental authority, eventu ally the impugned order was passed. Though the endorsement in the extract as hereinabove of an agenc 11. y beyond the departmental framework on the representation of the respondent No. 4 is an admitted fact being borne out by the records, the same ipso facto in the facts and circumstances of the case cannot be construed to be vitiative of the decision leading to the order impugned. The note of the Minister of Irrigation, Soil Conservation and Fishery, Assam, prima facie does not embody an imposing di rective on the Director of Elementary Education, Assam, to comply therewith and instead conveyed a request to him to consider the suspension of the order. This logically had been on a consideration of the grounds professed by the respondent No. 4 bearing on the mishaps in his family and his ailments disabling him to re spond to the earlier order of his transfer. The records also do not demonstrate any determinative impact of the request of the said extra departmental authority on the decision of the Director of Elementary Education, Assam, precipitating t he impugned order. As it is, the representation of the respondent No. 4 addresse d to the said authority appears to have been considered on merits independently by him as well. 12. In the interest of administrative efficiency and quality of publ ic service, it cannot be gainsaid that an employer ought not to be casually inse nsitive to the genuine and pressing predicaments of an employee. Noticeably the petitioner has not questioned the authenticity and or correctness of the pleas f orwarded by the respondent No. 4 in his representation(s) which in the estimate of this Court cannot be trivialised to be inconsequential and irrelevant. Thus t he pleaded representation of the State respondents that the impugned order of tr ansfer had been passed on a compassionate consideration of the inconveniences of respondent No. 4, having regard to the materials on record, cannot be rejected as unacceptable and frivolous. The averment of the State respondents that the petitioner has be en serving at Goalpara for nearly about 34 years has remained unrefuted as well. It is not the petitioner’s complaint that by the impugned order of transfer his service conditions as well have been prejudicially affected. The office note da ted 13/8/2008 referred to hereinabove, reveal that he had been transferred to an y existent vacant post. It is trite that transfer is an incidence of service and the sco pe of interference therewith in exercise of power of judicial review is very con stricted. The facts and circumstances of the case do not proclaim a violation of any statutory enactment and/or Rules. No malafide as such is discernible. Havin g regard to the length of stay of the petitioner at Goalpara, his charge of viol ation of the transfer guidelines also does not appeal to this Court. His accusat ion of unfairness and favouritism in favour of the respondent No. 4 is also not testified by the records. On a totality of the considerations as hereinabove, the impugned order, in the e stimate of this Court, does not stand invalidated by any of the recognised vitia ting factors to warrant interference therewith. The petition thus is dismissed a nd the interim order stands vacated. Misc. case No. 685/2009 as a consequence is allowed. No costs.