JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. D. Das, learned Senior Counsel, assisted by Mr. P.K. Munir, learned counsel for the petitioner. Also heard Ms. P. Das, learned counsel for the respondent Nos.1, 2 and 3. And also heard Ms. D.D. Barman, learned Addl. Senior Government Advocate for the respondent No.4 and Ms. I. Hussain, learned counsel for the respondent No.5,

2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Shahinur Alom Sarkar, has challenged the order dated 27.01.2025, issued under Memo No. IS/SSM/Transferred-Posting/04 /2023/409, issued by the Inspector of Schools, South Salmara Mankachar. Notably, vide impugned order dated 27.01.2025, the Inspector of Schools, South Salmara Mankachar, has transferred the petitioner from S. Ali Higher Secondary School, where he has been serving as Graduate Teacher (Science) to Kanaimara High School.

3. The impugned order is being challenged by the petitioner basically on the ground of being passed in absence of public interest and being punitive, arbitrary, unfair, illegal and violative of Article 14, 16 and 21 of the Constitution of India.

4. The respondent No. 3 has filed affidavit-in-opposition denying the averments made in the petition. It is stated that there was several public complaint (Annexure-D and E), against the petitioner and he is irregular in attendance, his behavior is inappropriate and deteriorating school environment. The School Management Committee had also taken a resolution against the petitioner for his anti-administrative activities and he was transferred for maintaining better academic atmosphere in the S. Ali H.S. School and for greater public interest. It is also stated that he is irregular in attendance and he availed 23 days casual leave in the year 2023-2024, whereas he is entitled to 12 days leave only, also he remained absent unauthorizedly for 5 days and he is involved in anti administrative activities. And for maintaining better academic atmosphere and for greater public interest he was transferred.

5. Mr. D. Das, the learned Senior Counsel for the petitioner, submits that the petitioner was serving as Graduate Teacher (Science) in S. Ali Higher Secondary School and vide impugned order; he has been transferred to Kanaimara High School in the same grade pay. He was suffering from neurological problem for which he was asked by Doctor to take rest for a week. Then he was served with a notice, asking for explanation for unauthorized absence for three days vide letter dated 27.12.2024 and he had submitted his reply on 30.12.2024. Thereafter, vide letter dated 02.01.2025, the Inspector of Schools, South Salmara Mankachar had issued another letter to him asking him to show cause for unauthorized absence and late attendance on 27.12.2024 to 28.12.2024 and late attendance thereafter. Mr. Das also submits that the petitioner had submitted one complaint to the Director Secondary Education for commission of some illegalities by the In-Charge Principal of S. Ali Higher Secondary School on 18th December, 2024 and thereafter, as a punitive measure the impugned transfer order was passed. Referring to a decision of Hon’ble Supreme Court in Somesh Tiwari vs. Union of India and Others, reported in (2009) 2 SCC 592 and another decision of Madras High Court in P. Karunakaran vs. Union of India and Others, reported in 2013 SCC OnLine Mad 3958, Mr. Das submits that when an order of transfer was passed by way of or in lieu of punishment the same is liable to be set aside. Referring to the stand taken in the affidavit-in-opposition by the respondent No.3, Mr. Das submits that as no element of public interest is being shown in the impugned order, the respondent authorities cannot improve their case in their affidavit-in- opposition by incorporating the ground which was not there in the impugned order. In support of his submission Mr. Das has referred to a decision of Hon’ble Supreme Court in Mohinder Singh Gill and Another vs. The Chief Elect