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Gauhati High Court
Manojit Bhuyan, J.
Gobinda CH. Kalita - Appellant
Versus
State of Assam & Ors. - Respondent
WP(C) No. 4853 of 2013
Decided On : 28-08-2015
Constitution of India, 1950 – Article 226 – Employment and Service matter - Assamese Language Teacher - Regular basis - Order of transfer - Challenged - According to petitioner he was appointed on regular basis as an Assamese Language Teacher in year at High School which is a Bengali Medium Linguistic Minority Educational Institution administered by its Managing Committee - At relevant time he was also nominated as a member of School Management and Development Committee by orders of Inspector of Schools District Circle - Ground of challenge to order of transfer dated is that it stands vitiated on principle of malice in law and not being based on any factor germane for passing order of transfer - In said letter dated reference was made to complaint received from Committee against petitioner of being a person of unruly behaviour a party to embezzlement disobedient and prone to uttering objectionable comments against higher authority - In said letter dated Director of Secondary Education also made subjective comments to effect that petitioner was very often seen loitering in Directorate and in one occasion Director himself had called him to his office chamber and cautioned petitioner not to visit Directorate without valid reason and without authority - Second chapter of petitioners case commenced with issuance of order of transfer dated so assailed in present proceedings – Held, Considering facts in reported case Apex Court held that order in question would attract principle of malice in law on ground that it was not based on any factor germane for passing an order of transfer but based on an irrelevant ground that is on allegations made against appellant therein in anonymous complaint - Apex Court held that when an order of transfer is passed in lieu of punishment same is liable to be set aside being wholly illegal - Petitioner to another school was on allegations made against him in written complaint filed by authority - Indisputably order of transfer was not issued on administrative exigencies which may have prompted this court to shy away from interfering with it - In circumstances a direction is also made to respondent authority for payment of salary of petitioner for period between - Petitioner shall be taken back into service as an Assamese Language Teacher at High School - Insofar as payment of salary of petitioner for period between to is concerned respondents concerned shall take steps towards payment of same within a period of three months from date of receipt of a copy of this order - Petitioner is permitted to furnish copy of this order to respondents concerned for their doing needful in terms of directions above – Petition Allowed.
Key Points: - The order of transfer can be set aside if malice in law is proven and not based on germane factors (!) [14000238090011] - A transfer does not escape interference when it is issued in lieu of punishment based on anonymous complaints, without proper procedure or opportunity to rebut (!) [14000238090006] - The court can direct restoration of the employee to original post and payment of pending salary when transfer is found illegal, along with steps for salary for the interim period [14000238090013][14000238090014][14000238090015]
2. According to the petitioner, he was appointed on regular basis as an Assamese Language Teacher in the year 1994 at Sri Aurobindo Vidyamandir High School, Ulubari, which is a Bengali Medium Linguistic Minority Educational Institution, administered by its Managing Committee. At the relevant time he was also nominated as a member of the School Management and Development Committee (SMDC) by orders of the Inspector of Schools, Kamrup District Circle.
3. The ground of challenge to the order of transfer dated 26.4.2013 is that it stands vitiated on the principle of malice in law and not being based on any factor germane for passing the order of transfer. It is contended that the order transferring the petitioner out of Sri Aurobindo Vidvamandir High School, Ulubari was passed by way of or in lieu of punishment on the basis of undisclosed complaint made to the Director of Secondary Education, Assam by some members of the SMDC.
4. It appears from the available records that following the complainta made by some members of the SMDC to the Director of Secondary Education, Assam, a letter dated 1.11.2012 was issued by the Director addressed to the Secretary to the Government of Assam, Education (Secondary) Department, copy of which was not served upon the petitioner. In the said letter dated 1.11.2012 reference was made to the complaint received from the Committee against the petitioner of being a person of unruly behaviour, a party to embezzlement, disobedient and prone to uttering objectionable comments against the higher authority. In the said letter dated 1.11.2012 the Director of Secondary Education also made subjective comments to the effect that the petitioner was very often seen loitering in the Directorate and in one occasion the Director himself had called him to his office chamber and cautioned the petitioner not to visit the Directorate without valid reason and without authority. The Director recommended his transfer to another school from his present working place and to that end, sought for Government approval.
5. The end result of the complaint made by SMDC and the recommendation made by the Director in his aforesaid letter dated 1.11.2012, was the order of transfer dated 7.12.2012 transferring the petitioner from Sri Aurobindo Vidyamandir High School, Ulubari to e Nagarbera Girls' High School. In the said order it was observed that the petitioner will carry his seniority. Challenge was made to the said order dated 7.12.2012 in WP(C) No. 6033/2012 and this court by order dated 14.12.2012 while observing that the petitioner had already been released on 10.12.2012, the respondents were directed to produce the f relevant records on the next date, i.e., 17.12.2012 for consideration of the interim prayer of the petitioner. Meantime, status--quo as on the date of the order was directed to be maintained until 18.12.2012. During the pendency of the said Writ Petition, the petitioner had made a representation to the Minister of Education, Government of Assam „ highlighting his grievances and requesting cancellation of the order of transfer. It appears that an endorsement had been made by the Minister concerned on the body of the representation itself with direction to the Director of Secondary Education to cancel the order of transfer. Pursuant thereto, the petitioner by means of a Misc. Application, i.e., Miscellaneous Application No. 475/2013 [in WP(C) No. 6033/12] withdrew the case h from file.
6. The second chapter of the petitioner's case commenced with the issuance of the order of transfer dated 26.4.2013, so assailed in the present proceedings. By the said order and in partial
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