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1994 Supreme(Gau) 90
GAUHATI HIGH COURT
S.N.Phukan, A.K.Patnaik, JJ.
Surendra Nath Saikia -Appellant
Versus
State of Assam and Ors. -Respondent
Writ Appeal No. 217 of 1993
Decided On : 13-05-1994
R.D.Lal, D.P.Chaliha, B.Banerjee, A.K.Bhattacharyya
The power to transfer a Government servant from one post to another is vested in the State Government under the Fundamental Rules framed by the Government of Assam under section 241 (2) (b) of the Government of India Act, 1935, and there was no express delegation of power either by an order of the State Government or by any rule in favour of the Director of Elementary Education, Assam, to make inter directorate transfers in accordance with FR 6 of the Fundamental Rules.
Headnote:
TRANSFER OF GOVERNMENT SERVANTS - JURISDICTION - INTER DIRECTORATE TRANSFER - POWER OF STATE GOVERNMENT - DELEGATION OF POWER - FUNDAMENTAL RULES - SUBSIDIARY RULES - COURT'S INTERFERENCE WITH TRANSFER ORDER.
Fact of the Case:
The appellant, a UD Assistant in the office of the District Elementary Education Officer, Nagaon, was transferred to the office of the Principal, Normal School, Nagaon, under the Director of State Council of Education Research and Training, Assam. The transfer was challenged on the ground that the Director of Elementary Education, Assam, had no jurisdiction to pass orders for transfer of Government servants working under him from his Directorate to another Directorate.
Finding of the Court:
The court held that the Director of Elementary Education, Assam, had no jurisdiction to transfer the appellant from the office of the District Elementary Education Officer, Nagaon to the office of the Principal, Normal School, Nagaon, as the power to transfer a Government servant from one post to another is vested in the State Government under the Fundamental Rules framed by the Government of Assam under section 241 (2) (b) of the Government of India Act, 1935, and there was no express delegation of power either by an order of the State Government or by any rule in favour of the Director of Elementary Education, Assam, to make inter directorate transfers in accordance with FR 6 of the Fundamental Rules.
Issues: 1. Whether the Director of Elementary Education, Assam, had the jurisdiction to transfer the appellant from the office of the District Elementary Education Officer, Nagaon to the office of the Principal, Normal School, Nagaon? 2. Whether the court can interfere with the impugned order of transfer.
Ratio Decidendi: 1. The power to transfer a Government servant from one post to another is vested in the State Government under the Fundamental Rules framed by the Government of Assam under section 241 (2) (b) of the Government of India Act, 1935. 2. The State Government may delegate any of its powers to any of its officers subject to any conditions which it may think fit to impose and to such extent as may be required for the convenient and efficient dispatch of public business. 3. No Rule or order has been produced by the learned Government Advocate, Assam, before us to show that the power of the State Government under Fundamental Rules to transfer a Government servant from one post to another has been delegated to or vested in the respondent No. 2. 4. The impugned order of transfer was passed by the respondent No. 2 contrary to FR 15 of Fundamental Rules vesting the power of transfer on the State Government and no express order or rule has been brought to our notice whereunder the said power of the State Government under FR 15 has been delegated in favour of the respondent No. 2 in respect of inter directorate transfers.
Final Decision: The impugned order of transfer was quashed and the judgment of the learned Single Judge dated 26. 8.93 in Civil Rule No. 2366 of 1992 was set aside.
This is an appeal against the judgment of the learned Single Judge in Civil Rule No. 2366 of 1992 dismissing the petition under Article 226 of the Constitution of India, wherein the appellant had challenged the order dated 24.9.92 of the Director of Elementary Education, Assam, (respondent No. 2) transferring the appellant from the post of UD Assistant from District Elementary Education Officer's office to the office of the Principal, Normal School, Nagaon.
2. The brief facts for the purpose of deciding this appeal are that the appellant was working as UD Assistant in the office of the District Elementary Education Officer, Nagaon (respondent No. 2 in Civil Rule No. 2366 of 1992), while the respondent No. 4 was working in the office of the Principal, Normal School, Nagaon under the Director of State Council of Education Research and Training, Assam, (respondent No. 3). On the basis of a representation made by the respondent No. 4, by impugned order dated 24.9.92, the appellant was transferred in the interest of public service from the office of the District Elementary Education Officer to the office of the Principal, Normal School, Nagaon and the respondent No. 4 was transferred from the office of the Principal, Normal School, Nagaon to the office of the District Elementary Education Officer, Nagaon by the respondent Ny, 2. The said order dated 24.9.92 of the respondent No. 2 is annexed to the Civil Rule as Annexure 1.
3. Thereafter on 11.10.92, the Minister of State, Veterinary and Minority Affairs, Assam, addressed a DO letter dated 11.10.92 to the Minister of Education stating therein that the appellant was a very popular person amongst all sections of people particularly the teachers and the local people are very happy with the performance of the appellant, and that his services are very essential and requested the Minister Education, Assam, to cancel the transfer order issued by the respondent No. 2 in the interest of public as well as in the interest of teachers. A Xerox copy of the said DO letter dated 11.10.92 of the Minister of State, Veterinary and Minority Affairs, Assam, is annexed to the Civil Rule as Annexure 2. It appears that on the said DO letter, the Minister of State, Education addressed a note to the respondent No. 2 to cancel the transfer order. On 27.10.92, the Minister of State, Veterinary and Minority Affairs, Assam, again addressed a DO letter to the Minister, Education, Assam, requesting him to cancel the transfer order of the appellant in the interest of public service. In the said DO letter dated 27.10.92 it was stated that the Minister, Education, Assam had passed an order dated 13.12.90 to cancel the transfer order of the appellant, but the respondent No. 2 has not yet implemented the said order. A Xerox copy of the said DO letter dated 27.10.92 has been annexed to this Civil Rule as Annexure 3. On a reading of the xerox copy of the said DO letter dated 27.10.92 (Annexure 3) it appears that the Minister, Education, Assam, has made an endorsement thereon to the respondent No,2 requesting him to implement the order passed by the Minister Education. Despite the said endorsement of the Minister, Education, Assam, the respondent No. 2 did not cancel the impugned order of transfer of the appellant from the District Elementary Education Officer's office Nagaon to the office of the Principal, Normal School, Nagaon. Unable to get relief from the authorities, the appellant filed Civil Rule No. 2366 of 1992 for quashing the, said order «f transfer dated 24.9.92 of the respondent No. 2 (Annexure 1 to the Civil Rule). But the said writ petition was dismissed by the learned Single Judge by judgment dated 26.8.93. Aggrieved by the said judgment of the learned Single Judge, the appellant has filed this writ appeal.
4. Mr. AK Bhattacharyya, learned counsel for the appellant, submits that the only point that was raised in the writ petition was that the respondent No. 2 had no jurisdiction to pass ord
