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1993 Supreme(Gau) 288
GAUHATI HIGH COURT
D.N.Baruah, J.
Nupur Sarma -Appellant
Versus
State of Assam and Ors. -Respondent
Civil Rule No. 1947 of 1993
Decided On : 22-12-1993
M.Nath, H.S.Thangkhiew, A.M.Majumdar, N.M.Lahiri, S.S.Dey, N.Choudhary
A transfer order passed during a period of ban on transfers is illegal and arbitrary unless it is made in an emergent situation with the prior approval of the Chief Minister.
Headnote:
TRANSFER OF OFFICERS - BAN ON TRANSFERS - EXCEPTION - EMERGENT SITUATION - APPROVAL OF CHIEF MINISTER - ASSAM PUBLIC SERVICE COMMISSION (LIMITATION OF FUNCTIONS) REGULATION, 1951, RULE 3(F) - ASSAM PUBLIC SERVICE COMMISSION (AD HOC) APPOINTMENT RULES, 1986, RULE 3(1).
Fact of the Case:
Petitioner, an Inspector of Schools, challenged his transfer during a period when transfers were banned by the Government, except in cases of emergency with the prior approval of the Chief Minister. The transfer was made under Rule 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951, and the petitioner was initially appointed under Rule 3(1) of the Assam Public Service Commission (Ad hoc) Appointment Rules, 1986.
Finding of the Court:
The court found that the transfer order was passed during the period of ban on transfers and that there was no evidence of an emergent situation or prior approval from the Chief Minister. The court also noted that the transfer was made to accommodate another officer and was not in the interest of public service.
Issues: 1. Whether the transfer order was passed in violation of the ban on transfers imposed by the Government? 2. Whether the transfer was made in an emergent situation with the prior approval of the Chief Minister?
Ratio Decidendi: The court held that the transfer order was illegal and arbitrary as it was passed during the period of ban on transfers and there was no evidence of an emergent situation or prior approval from the Chief Minister. The court also held that the transfer was not in the interest of public service.
Final Decision: The court allowed the petition and set aside the impugned transfer order.
Petitioner is a holder of Master Degree in Botany. On 29.10.79 he was appointed subject teacher in Botany in Koliabor Higher Secondary School. He served in the said school for two years and thereafter, he was transferred to Puranigram Higher Secondary School. Again on 30.10.86, he was transferred to Doboka Higher Secondary School where he served about three years. Thereafter he was appointed Senior Lecturer in DIET at Samaguri.
2. Fourth respondent issued advertisement on 25.11.89 inviting applications for filling up some posts of Inspector of Schools, Deputy Director and District Elementary Education Officer in the Assam Education Service Class I on ad-hoc basis under Rule 3 (1) of the Assam Public Service Commission (Ad hoc) Appointment Rules, 1986. Petitioner being qualified and eligible for the said posts submitted application for the same before the fourth respondent. Thereafter, he was asked to appear before an Interview Board on 5.6.90. The Board after taking interview found the petitioner suitable for appointment and accordingly selected him by Annexure 1 Notification dated 4th August, 1990. This Notification was issued in continuation of the Education Department's Notification No. EPG. 291/90/38 dated 5.7.90. After appointment the petitioner was asked to undergo training. He accordingly underwent training. On completion of the aforesaid training, petitioner was released and by the aforesaid Annexure 1 Notification he was appointed Inspector of Schools against a permanent vacancy and posted at Barpeta where he joined on 8.9.90. However, by a subsequent Annexure 2 Notification dated 11th March, 1992 the appointment made under Rule 3 (1) of the Assam Public. Service Commission (Ad hoc) Appointment Rules, 1986 was converted to Rule 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 until appointment for 4 (four) months and this was extended from time to time.
3. On 24.4.92 the petitioner was again transferred and posted to Silchar, Cachar District Circle and accordingly on transfer he joined at Silchar on 14.5.92. Since then he had been continuing in his service. Meanwhile, the petitioner's wife Smti Minati Sarma was also posted and transferred to Udharbond as a Lecturer on 1.8.92. After such transfer the petitioner's children were admitted in a school at Silchar and they had been studying in the said school. Meanwhile, the third respondent by Annexure 4 Notification dated 15th July, 1993 transferred the petitioner and posted him as District Elementary Education Officer, Bangaigaon vide Anil Dutta, Inspector of Schools and the fifth respondent was allowed to hold charge of the Inspector of Schools CDC Silchar in his place.
4. According to the petitioner the transfer was made when all transfers and postings were banned by the Government of Assam by Annexure 5 Notification dated 25th May, 1993. By Annexure 6 Notification dated 10th December, 1984 Government adopted a policy that transfer should, on normal occasions, be effected in such a manner that the academic session of the children of the transferred employee is not wasted. By Annexure 7 Office Memorandum dated 25th February, 1991 all Administrative Departments were asked to direct Heads of Departments to ensure that Government instructions to regard to the transfer of officers were strictly followed and report the names of officers both gazetted and non gazetted who were continuing for more than three years in the same place of posting to the Senior Advisor to the Governor of Assam through the Departmental Commissioner. Annexure 5 Notification specifically mentione
