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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
VIJAY BISHNOI, C.J., SUMAN SHYAM, J.
THE STATE OF ASSAM – Petitioner
Versus
NIRABKUMAR SARMAH S/O LATE JYOTISH CHANDRA SARMAH – Respondent
WA No. 336 of 2023
Decided On : 02-09-2024
Attachment - Writ Appeal - Assam Education Service Rules, 1982 - The Court interpreted the provisions regarding employee attachment and transfer, concluding that reassignment within the same department does not require consent, thus upholding the government's action.
Fact of the Case:
The respondent was appointed as Principal of Diphu Government College but was later attached as OSD in the Directorate of Higher Education, leading to a legal challenge against the government's action.
Finding of the Court:
The Court found that the attachment of the respondent did not constitute a transfer or violation of service conditions, as it was a reassignment within the same department.
Issues: Whether the attachment of the respondent to an ex-cadre post without consent was permissible under the law.
Ratio Decidendi: The Court held that reassignment within the same department does not require employee consent, distinguishing it from a transfer or deputation.
Result: The impugned judgment was set aside, and the Writ Appeal was allowed.
JUDGMENT :
SUMAN SHYAM, J.
1. The present Writ Appeal has been preferred by the State of Assam and 2 senior officials of the State, assailing the judgment and order dated 28.06.2023 passed by the learned Single Judge in WP (C) No. 5400/2021 instituted by the respondent No. 1 (writ petitioner) allowing the Writ Petition by setting aside the Notification dated 24.09.2021 by means of which, the services of the respondent No. 1 was attached with the Directorate of Higher Education, Assam as an Officer on Special Duty (OSD). The facts and circumstances of the case, giving rise to filing of this appeal, shorn of unnecessary details, may be noticed herein below.
2. On 30.07.2011 the Deputy Secretary to the Assam Public Service Commission (herein after referred to as the APSC) had issued Advertisement Notice No. 03/2011 inviting applications inter-alia for filling up one post of Principal in the Diphu Government College, Diphu, which comes under the Education (Higher) Department of the Government of Assam. The respondent No. 1 (writ petitioner), who was serving as a Lecturer in the Department of Chemistry in the Diphu Government College, Diphu at the relevant time, had submitted his candidature for the post of Principal of the Diphu Government College. Upon completion of the selection process the respondent No. 1 (writ petitioner) emerged as the successful candidate. As such, by the Notification dated 13.01.2012 issued by the Commissioner and Secretary to the Government of Assam, Higher Education Department, the respondent No. 1 was appointed in the post of Principal of Diphu Government College, Diphu on being recommended by the APSC. It appears that the appointment of the respondent No. 1 in the post of Principal of Diphu Government College was called into question by an organization viz., Assam Enviro Legal Protection Society, by instituting PIL No. 61/2012 before this Court inter-alia on the ground that the respondent No. 1 did not have the eligibility for being appointed in the post of Principal of Diphu Government College. The PIL was, however, dismissed by this Court by order dated 24.09.2012. While the respondent No. 1 was serving as Principal of the Diphu Government College, a number of allegations of misdemeanor/ misconduct came to be made against him as a result of which, by the order dated 20.08.2013 issued by the Principal Secretary, Karbi Anglong Autonomous Council (KAAC), the respondent No. 1 was placed under suspension pending drawal of disciplinary proceeding. The aforesaid order of suspension was, however, interfered by this Court by judgment and order dated 09.12.2013 passed in WP (C) No. 6281/2013 primarily on the ground that since the respondent No. 1 was an employee of the Government of Assam under the Higher Education Department, the Principal Secretary, KAAC did not have any authority or jurisdiction under the law to issue the order of suspension. Be that as it may, subsequently, by the order dated 07.06.2014 issued by the Principal Secretary, KAAC, the respondent No. 1 was released from the post of Principal, Diphu Government College in the wake of vehement protests being made by the faculty members, students and the members of the public opposing the continuance of the respondent No. 1 in the post of Principal of the College. The order dated 07.06.2014 was challenged by the respondent No. 1 before this Court by filing WP (C) No. 3062/2014 and by an interim order dated 20.06.2014 this Court had suspended the operation of the order dated 07.06.2014, thus, allowing the respondent No. 1 to function as the Principal of Diphu Government College. While the respondent No. 1 was continuing as such, the Principal Secretary to the Government of Assam, Education Department had issued the impugned order dated 24.09.2021 whereby, the respondent No. 1 was attached as OSD in the Directorate of Higher Education, Assam, Kahilipara, Guwahati and one Sri Abdul Matin, Associate Professor and the seniormost faculty member in the Depar
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