Back
2015 Supreme(Gau) 961
IN THE HIGH COURT OF GAUHATI
M.R. PATHAK, J.
Dr. Homeswar Kalita - Petitioner
Versus
The State of Assam & Ors. - Respondents
W.P. (C) No. 6492 of 2015
Decided on : 10-12-2015
Advocate Appeared:
For the Petitioner: Mr. A. Barbora, Mrs. Reeta Barbora, Mr. Ratul Gowami, Mr. Manjyoti Smith, Ms. Pallabi Saikia, Ms. Sameelata Saikia
For the Respondents No. 1 & 2: Mr. Manish Choudhury
For the Respondent No. 4: Mr. Mrinal Kumar Choudhury, Mr. Bijan Chakraborty, Mr. Santanu Chakraborty
Headnote:
Assam Non-Government College Management Rules, 2001 - Section 3(c) - Prejudice to service - Tenure of respondent - Impugned transfer order - Petitioner while serving as a Lecturer of College since in pursuance of an advertisement and selection was appointed as Principal of Commerce College with effect - During tenure of respondent as Principal of Commerce College an untoward incident occurred in office chamber of respondent between him and some teaching staff of said college which was widely telecast in different news channels of State and also published in local dailies – Held, It is a settled law that executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context policy of a Minister or Government as a whole when it is a relevant factor in weighing policy but the same will not absolve them from their duty to exercise their own discretion in individual cases in accordance with law and rules in force unless explicit statutory provision has been made for them to be given binding instructions by a superior - From records of case it is seen that both communication of Government in Higher Education Department and impugned transfer order are not made for professed in normal course and/or in public or administrative interest and/or in exigencies of service but for other purpose only to accommodate respondent for undisclosed reasons - Writ petition allowed
Heard Mr. A. Barbora, learned senior counsel assisted by Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. M. Choudhury, learned Standing Counsel, Higher Education Department appearing on behalf of the official Respondents No. 1 & 2 and Mr. M.K. Choudhury, learned senior counsel, assisted by Mr. B. Chakraborty, learned counsel appearing for the private Respondent No.4.
2. Pursuant to the letter of the State Government in Higher Education Department bearing No. AHE.42/2015/7 dated 08.10.2015 and as per the provisions of Section 3(c) of the Assam College Provincialisation Act, 2005, as amended in 2012, and in the interest of public service; the Director of Higher Education (DHE), Assam by his order No. G(B)Misc./121/2013/Pt./98 dated 09.10.2015 transferred the Respondent No.4, Principal of K.C. Das Commerce College, Guwahati and posted him at Gauhati Commerce College, Guwahati and by the same order the DHE further transferred the petitioner, Principal of Gauhati Commerce College, Guwahati to K.C. Das Commerce College, Guwahati with the observation that the Respondent No.4 shall move first.
3. The said order of the DHE, Assam under order No. G(B)Misc./121/2013/Pt./98 dated 09.10.2015 is under challenge in this petition.
4. Brief facts of the case is that the petitioner, while serving as a Lecturer of Gargaon College since 20.09.1995, in pursuance of an advertisement and selection, was appointed as Principal of K.C. Das Commerce College, Guwahati with effect from 31.10.2012.
5. During the tenure of the respondent No. 4 as Principal of Gauhati Commerce College, Guwahati (hereinafter referred as GCCG), on 02.06.2014 an untoward incident occurred in the office chamber of the respondent No. 4, between him and some teaching staff of the said college, which was widely telecast in different news channels of the State and also published in the local dailies.
6. With regard to the said incident of 02.06.2014 in GCCG, the State Government in the Higher Education Department made an independent preliminary inquiry through its Joint Secretary in the Higher Education Department. The Directorate of Higher Education also made an inquiry from its side. After going through the reports of said inquiries, the Commissioner & Secretary, Higher Education Department, Assam by its letter No. AHE.29/2014/126 dated 19.06.2014 directed the DHE, Assam to initiate departmental proceedings and charge sheet the erring teaching staff & the Principal (Respondent No.4) of said college, involved in the commotion, based on the findings of the enquiry reports; to take appropriate action by transferring the Respondent No. 4 to another college and also to place the erring teaching staff of said GCCG, involved in the said incident, under suspension. Accordingly, the DHE, Assam, by his letter dated 20.06.2014 informed the Governing Body of GCCG that for the said incident of 02.06.2014, the State Government in the Higher Education Department have advised for transfer of the Respondent No. 4 from the post of Principal of the said College to any other College.
7. Being aggrieved with the said decision of the Government in the Higher Education Department and the letter of the DHE, Assam dated 20.06.2014; the Respondent No.4, approached this Court in W.P.(C) No. 3360 of 2014 challenging the same. Initially, on 27.06.2014, in said W.P.(C) No. 3360/2014, the Court passed an order directing the official respondents therein, not to pass any consequential order of transfer of the Respondent No.4 pursuant to the said communication of the DHE, Assam dated 20.06.2014.
8. But in the meanwhile, in terms of the Government’s (Higher Education Department) letter No. AHE.29/2014/136 dated 26.06.2014 and in the public interest, the DHE, Assam by his order No. G(B)Misc.121/2013/283 dated 27.06.2014 transferred the Respondent No.4 from GCCG as per the provisions of Section 3(c) of the Assam College Employees Provincialisation Act, 2005 as amended on 2012 and posted him as P
