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IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Dilip Kr. Saikia - Appellants
Vs.
State of Assam and Ors. - Respondent
WP (C) No. 9258 of 2003
Decided On : 30.08.2004
Transfer - School Teacher - [Education Act, Section 1(1)(a), Section 2(3)(b)] - The court discussed the guidelines for transfer of teachers, the requirement of prior approval for transfer before completion of three years of tenure, and the principle of administrative exigencies. The court emphasized that transfer should be based on public interest and administrative exigencies, and not for accommodating another person or for extraneous considerations. The court referred to legal provisions and interpretations from the Education Act and relevant case laws to support its decision.
Fact of the Case:
The Petitioner, a school teacher, challenged the legality of his transfer to another school, alleging that it was done to accommodate another teacher and not in public interest. The Respondent No. 5, beneficiary of the transfer, cited allegations against the Petitioner as the basis for the transfer.
Finding of the Court:
The court found that the transfer was not based on public interest or administrative exigencies, but was made to accommodate the Respondent No. 5, violating transfer guidelines. The court set aside the transfer order and directed payment of salaries to both parties for the intervening period. The official Respondents were allowed to take a fresh decision in accordance with the law.
Issues: The issues involved the legality of the teacher's transfer, the basis for the transfer, and compliance with transfer guidelines.
Ratio Decidendi: The court held that transfer should be based on public interest and administrative exigencies, and not for accommodating another person or extraneous considerations. It emphasized the need for prior approval for transfer before completion of three years of tenure, as per the Education Act.
Final Decision: The writ petition was allowed, and the transfer order was set aside. Both parties were entitled to their respective salaries for the intervening period. The official Respondents were directed to take a fresh decision in accordance with the law, and the Petitioner was to be given an opportunity to present his case if any adverse action was taken.
B.K. Sharma, J.
1. The Petitioner who is an M.E. School teacher has assailed the legality and validity of an order dated 14.10.2003 by which he has been transferred to another School.
2. The Petitioner while was serving as Graduate Science Teacher in Jumurmur Milan Bidyapith M.E. School under Nagaon Sub Division was transferred and posted to Bamuni M.E. School by an order dated 14.2.2003. Pursuant to the said order of transfer, the Petitioner joined Bamuni M.E. School and has been continuing there. According to the Petitioner he has been selected for appointment as Headmaster and his position in the select list is at serial No. 137 as against the position of the Respondent No. 4 at serial No. 169. It is the case of the Petitioner that the Respondent No. 4 having regard to his lower merit position in the select list than that of the Petitioner, has been trying hard to see the ouster of the Petitioner from the school paving the way for him to become the Headmaster of the School and with that purpose he has mastered the impugned order of transfer of the Petitioner with the political influence he has through his sister-in-law.
3. By the impugned order dated 14.10.2003, the Petitioner has been transferred to Krishna Handique M.E. School in Hojai Sub Division and the Respondent No. 5 has been transferred to his place. Being aggrieved, the Petitioner made a representation dated 31.10.2003 before the District Elementary Education Officer, Nagaon urging various grounds for cancellation of the impugned order of transfer. Placing reliance on Annexure-V and V(I) Memorandums dated 4.2.2003, and 22.5.2002, it is the case of the Petitioner that his transfer is in violation of the guidelines laid down therein, more particularly the one relating to three years of tenure at a place of posting which further requires that in the event of transfer before completion of the tenure of three years, the prior approval of the Chief Minister is to be obtained. According to the Petitioner, no such prior approval has been obtained, although he has been sought to be transferred by the impugned order, even before completion of the tenure of three years in his present school.
4. The Respondent No. 5, who is the beneficiary of the transfer order has filed an affidavit inter alia stating that there are allegations against the Petitioner and certain public complaints were lodged against him. It is only thereafter the impugned order dated 14.10.2003 has been issued and that she has already joined Bamuni M.E. School on 16.10.2003 pursuant to the impugned order of transfer.
5. The Petitioner has re-acted to the said affidavit-in-opposition by filing an affidavit- in-reply reiterating the stand in the writ petition. As per the stand in the affidavit-in-reply, the transfer order has been issued only to accommodate the Respondent No. 5 and to facilitate the promotion of the Respondent No. 4 as Headmaster of the School. As regards the allegations, it is the stand of the Petitioner that the same are false and baseless. Placing reliance on the enquiry report dated 27.10.2003 submitted by the Block Elementary Education Officer, it is the case of the Petitioner that nothing could be found against the Petitioner and the enquiry report rather certified the Petitioner to be a good teacher.
6. I have heard Mr. K.K. Mahanta, learned Counsel for the Petitioner and Mr. V.M. Thomas, learned Standing Counsel, Education Department. Mrs. G. Sinha, learned Counsel made submissions on behalf of the Respondent No. 5.
7. The records of the case were called for, for clarification of the allegations and counter allegation and the real reason behind the impugned order of transfer. Mr. K.K. Mahanta, learned Counsel for the Petitioner submitted that the impugned order of transfer is not based on any public interest. He submitted that the same has been issued only to accommodate the Respondent No. 5. Referring to the enquiry report, he submitted that the allegations made against the Petitione
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