KALYAN KR SARKAR Vs. ALOK KANTI PAUL CHOUDHURY

JUDGEMENT

(1.) Sri Alok Kanti Paul Choudhury, respondent No. 1 herein, filed W.P. (C) No. 856 of 2006 challenging the notification dated 7.2.2006 issued by the Commissioner & Secretary to the Govt. of Assam, Education] (Higher & Technical) Department transferring him from Guwahati to Bongaigaon as Principal of Bongaigaon Polytechnic vice the appellant Sri Kalyan Kumar Sarkar, who was transferred from Bongaigaon to Guwahati as Principal in Assam Textile Institute in place of the respondent No. I/writ petitioner. Such transfer order was basically challenged on two grounds, namely malafide exercise of power and violation of the transfer policy formulated by the Government of Assam. The learned Single Judge vide order dated 10.3.2006 set aside the said transfer order dated 7.2.2006 on the ground that the same was passed in violation of the transfer policy by not recording the reason for transfer and without prior approval of the Hon'ble Chief Minister and as desired by the Minister Social Welfare, Assam, who is totally unconnected with the department of Education. Hence the present appeal by the appellant who was respondent No. 4 in the said writ petition.

(2.) We have heard Mr. A. Mazumder, learned Sr. counsel appearing on behalf of the appellant and Dr. B. Ahmed, learned counsel for the respondent No. 1 as well as learned standing counsel Education Department appearing on behalf of the respondent Nos. 2 to 4.

(3.) Mr. Mazumdar, learned Sr. Counsel appearing on behalf of the appellant referring to the pleadings of the writ petitioner in the writ petition, who is respondent No. 1 herein, has submitted that the transfer order was challenged on two grounds, firstly on the ground of violation of the transfer guideline and secondly on the ground that the same was passed at the instance of the Minister Social Welfare, he has nothing to do with the Education Department. According to the learned senior counsel the violation of the transfer guideline/ policy formulated by the State of Assam cannot give rise to any legally enforceable right on the writ petitioner/respondent No. 1 seeking a writ under Article 226 of the Constitution of India, even if such guideline/transfer policy is violated by the authority while passing the order of transfer. Mr. Mazumdar, has submitted that in fact in the present case such guideline was never violated and the approval of the Hon'ble Chief Minister which requires to be obtained in case of transferring an officer before completion of three years tenure at a particular place of posting was in fact obtained. It has further been submitted that it is not that the transfer order was issued at the behest of the Minister Social Welfare and in any case according to the learned senior counsel there is no wrong in approaching a minister who is the elected representative of the people and the transfer order cannot be set aside on the ground that at one point of time the appellant or his wife approached the minister of another department. Such order of transfer can be interfered with only if the same is not issued in the interest of public service or in the administrative exigencies or issued in violation of any statutory provision or if the transfer order amounts to change of conditions of the service of the employee or was passed in malafide exercise of power or by an authority who is not competent to pass such transfer order, submitted by the learned senior counsel. Mr. Mazumdar, has further contended that the petitioner though in the writ petition has stated that the transfer order was passed malafide, no fundamental fact even to suggest malafide has been pleaded in the writ petition. According to the learned senior counsel the learned Single Judge interfered with the order of transfer on the ground of not recording the reason and not taking the approval of the Hon'ble Chief Minister and as well as on the ground that the same was issued at the instance of the Minister Social Welfare, without recording any finding that the authority has exercised the power malafide. Mr. Mazumdar, therefore submits that the judgment passed by the learned Single Judge requires to be interfered with.