Judgment · High Court · 2012

Heard Mr. KK Mahanta, learned senior counsel for the petitioner; Mr. AD Choudhur y, learned standing counsel, Education Department appearing for the respondent N o.1, 3 and 4 and Mr. UK Nair, learned counsel appearing for the respondent No.5. As agreed to by the learned counsel appearing for the parties, the writ petition is taken up for disposal at the motion stage itself. The grievance of the petitioner in the present petition is against the order dat ed 28th March, 2012 passed by the Secretary to the Government of Assam, Educatio n (Secondary) Department allowing the respondent No.5 to look after the academic affairs of Kandhulimari Serajia High School in the district of Nagaon, by holdi ng that the petitioner has been transferred to the said school on 3rd June, 2000 on his own request and thereby loosing his seniority in the transferred school of posting. Mr. Mahanta, learned senior counsel referring to the averments made in the writ petition has submitted that the petitioner never contended before the Secretary that he was transferred to the aforesaid school on his own request on 1st June, 2000 and instead insisted that he was transferred in the public interest as refl ected in the order of transfer dated 1st June, 2000, which though stipulates tha t no TA and DA would be admissible, he was transferred in the interest of public service. Mr. Mahanta, therefore, submits that the very basis on which the impu gned order dated 28th March, 2012 has been passed, i.e. the admission of the pet itioner about his transfer on own request is wrong and hence the entire matter i s required to be reconsidered on the basis of the relevant records including the service book of the petitioner. Mr. Choudhury, learned standing counsel, Education Department submits that the r ecords of transfer maintained by the Inspector of Schools, Nagaon District Circl e neither reveal existence of the transfer order dated 1st June, 2000 nor the co rresponding note in the note-sheet relating to the transfer of the petitioner to the aforesaid school. Mr. Choudhury, however, submits that the original copy o f the transfer order is available in the service book of the petitioner and by v irtue of the said transfer order the petitioner has joined the transferred place of posting. It has also been submitted by the learned standing counsel that as the petitioner has contended that he has insisted before the Secretary that he was transferred in the public interest and not on his own request, the Secretary would definitely reconsider the same, in view of such assertion of the petition er, on the basis of the relevant records, as the impugned order has been passed basically on the ground that the petitioner did not deny that he was transferred on his own request. It has also been submitted by Mr. Choudhury that apart fro m the aforesaid record of transfer, no other record is available. Mr. Nair, learned counsel appearing for the respondent No.5 submits that non ava ilability of the order of transfer dated 1st June, 2000 in the record and mentio ning in the order of transfer dated 1st June, 2000, as annexed to the writ petit ion as Annexure-2, that no TA and DA is admissible goes to show that the petitio ner was transferred on his own request and as such, consequent upon the full Ben ch judgment of this Court in Jamal Uddin Ahmed & Ors. -Vs- State of Assam & Ors. reported in 2012 (1) GLT 1 the impugned order has rightly been passed by the Se cretary. It appears that the issue involved in the present writ petition is whether the p etitioner was transferred to Kandhulimari Serajia High School on his own request vide order dated 1st June, 2000 or in the public interest. While in the said o rder, it has been mentioned that the transfer order was passed in the interest o f public service, it also contains a stipulation that no TA and DA would be admi ssible. A full Bench of this Court in Jamal Uddin Ahmed (supra) has held that i f a teacher is transferred from one school to another on his own request, he wil l loose his seniority in the transferred school of posting. The Secretary to the Government of Assam in Education (Secondary) Department vid e impugned order dated 28th March, 2012 has allowed the respondent No.5 to hold the academic charge of the aforesaid school on the ground that the petitioner di d not contradict that he was transferred on his own request to the aforesaid sch ool. The petitioner, on the other hand, has contended that he has maintained hi s position that he was not transferred in his own request but in the public inte rest, as reflected in the transfer order dated 1st June, 2000. The impugned ord er dated 28th March, 2012 also does not reveal consideration of the relevant rec ords including the service book of the petitioner. Merely mentioning in the ord er of transfer that no TA and DA would be admissible, it may not be the conclusi ve proof that the petitioner was transferred on his own request and not in publi c interest. That being the position, the writ petition is disposed of directing the Secretar y to the Government of Assam, Education (Secondary) Department to reconsider the claim of the petitioner that he was not transferred on his own request but in p ublic interest vide order dated 1st June, 2000 and pass necessary order on the b asis of the relevant records including the service book. Such reconsideration s hall be made and necessary order shall be passed within 3(three) weeks’ from the date of receipt of the certified copy of the order passed today by either of th e parties before the said authority and upon hearing all concerned including the petitioner and the respondent No.5. The order that may be passed shall be serv ed on the petitioner as well as the respondent No.5. Till such order is passe d, status-quo as regards the holding of the post of headmaster of Kandhulimari S erajia High School school as on date, shall be maintained. The writ petition is accordingly disposed of. No costs.