This petition under Article.226 of the Constitution of India has been preferred by the petitioner assailing the order of transfer issued by the Inspector of Schools, Nalbari District Circle, Nalbari vide Memo No. EST-10/53/94/13588-96 dated 6.11.96. Shorn of details, the petitioner's case, in brief, is that he was appointed as Assistant Teacher in Samata High School and has been serving there since 27.3.89. He was upgraded to the post of Assistant Teacher in the graduate scale with effect from 31.3.93. Sometime in the month of February, 1996 he was served with an order of transfer to Bali High School in place of Shri Aswini Goswami who was transferred to Samata High School. The transfer order has been assailed as malafide on the ground that it was passed at the behest of Minister of Agriculture to oust him from the school for political reasons. Further the transfer has been challenged on the ground that his seniority will be affected adversely and it would mean a reduction in rank amounting to imposition of punishment. According to the petitioner, no public interest is involved in his transfer which is passed in violation of all the established procedure of law.

2. In the counter affidavit filed by the private respondent No.4, the contention raised by the petitioner has been denied in its entirety with the assertion that there was no malafide in issuing the transfer order. The allegation of influence by the local Minister has also been denied and it is averred further that his transfer order was issued on consideration of a representation submitted by him on the ground that he was advised by his physician not to move on bicycle to cover a distance of 12 kilometers to attend his school. The transfer of the petitioner to the Bali High School will not affect his seniority in any manner as the seniority is always determined according to the length of service in the scale and not in the school. It is important to mention here that the respondent Nos. l, 2 and 3 have not filed any affidavit denying the allegations made.

3. The learned counsel for the petitioner at the initial stage of his argument referred to a note written by the Minister, Agriculture at Annexure B wherein the Minister concerned requested the Inspector of Schools to transfer the respondent No.4 to Samata High School and vehemently argued that because of the interference of the Minister, the petitioner was transferred to Bali High School and this action in no way can be construed to be in the interest of public service.

4. The representation submitted by the petitioner seeking transfer is not made available before this Court. The affidavit is also not clear as to the nature of ailment of the respondent No.4. In this given situation, it is not possible for this Court to come to a conclusion that the grounds for his transfer were genuine. The language of the note given by the Minister concerned is almost in the form of an order directing the Inspector of Schools, Nalbari to transfer the respondent No.4 from Bali High School to Samata High School. In view of this and in the absence of materials to justify the grounds of transfer of the respondent No.4, this Court has no option but to come to the conclusion that the transfer order was undoubtedly made at the behest of the Minister concerned. Although the words 'public interest' occur in the transfer order, this Court is unable to appreciate as to the exigency of the public interest involved in this order because of the influence of the Minister. As such, the transfer order having not been proved to be in the interest of public service and made on the face of an order of the Ministejcan be relegated as malafide.

5. Mr. RL Yadav, learned counsel for the respondent No.4 laid emphasis on the decision of the Apex Court in Union of India & others vs. SL Abbas reported in AIR 1993 SC 2444 wherein the Supreme Court held as follows :

"7. Who should be transferred where, is a matter forthe appropriate authority to decide. Unless the o

Click Here to Read the rest of this document