JOGESWAR BORAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner has challenged the order dated 18.2.98 of the Secretary to the Govt. of Assam, Education Department, by which the petitioner was transferred and posted as Research Officer in the office of the Additional Director of Education (Hills) Haflong.

(2.) The facts briefly are that the petitioner was appointed on regular basis as Research Officer in the Directorate of Higher Education, Assam, by order dated 9.5.94 and since then the continued to work as Research Officer in the Directorate of Higher Education, Assam, at Guwahati. Anticipating his transfer from Guwahati, the petitioner filed Civil Rule No. 4233/97 before this Court and by order dated 8.9.97 this Court disposed of the said Civil ' Rule with the direction that the Secretary to the Govt. of Assam, Education (Higher) Department will consider the representation of the petitioner against the proposed transfer and pass appropriate orders within a period of 15 days from the date of receipt of a certified copy of the order dated 8.9.97 of this Court. Aggrieved by the said order dated 8.9.97 of this Court, the respondent No. 7 preferred Writ Appeal No. 535/97 apprehending that if the representations of the petitioner were considered, the proposed transfer of the respondent No. 7 from Haflong to Guwahati may be affected. The Division Bench by order dated 26.9.97, however, took a view that since no order had been passed by the Government interfering with or modifying the proposed order of transfer of the respondent No. 7, there is no reason for preferring the appeal against the order of the learned Single Judge passed in CR No. 4233/ 97 and that the appeal was purely academic in nature. By the said order dated 26.9.97, however, the Division Bench reserved liberty to the respondent No. 7 to approach the Court as and when the proposed order of transfer was cancelled or modified affecting his rights. Thereafter, by order dated 29.9.97, the Commissioner & Secretary to the Government of Assam, Education Department, revoked the transfer order of the petitioner to Haflong and of the respondent No. 7 to Guwahati. The respondent No. 7 then filed Civil Rule No. 5001/97 before this Court and the said Civil Rule was disposed of by the learned single judge directing the authorities to dispose of the representations filed by the petitioner within a period of 10 days and further directed that the authorities shall take into consideration the facts and circumstances of the case of the petitioner as well as respondent No 7. Pursuant to the said direction of the learned Single Judge in Civil Rule No. 5001/97, the Secretary to the Government of Assam, Education Department, considered the cases of both the petitioner and the respondent No. 7 and ordered that the respondent No. 7 be transferred and posted as Research Officer in the Directorate of Education (Higher), Guwahati and the petitioner be transferred and posted as Research Officer in the office of the Additional Director of Education (Hills), Assam, Haflong. Aggrieved by the said order dated 18.2.98 of the Secretary to the Government of Assam, Education Department, the petitioner has filed this writ petition for appropriate relief.

(3.) Mr N. Dutta, learned counsel for the petitioner, submitted that one of the points raised by the petitioner before the Secretary to the Government of Assam, Education Department, against his transfer from Guwahati to Haflong was that the office of the Additional Director of Education (Hills), Assam, Haflong to which the petitioner was sought to be transferred was entrusted to NC Hills Autonomous District Council and that under the Office Memorandum dated 31.12.96 of the Government of Assam, Hills Areas Development Department and in particular paragraph-H thereof, consultation of the Autonomous District Council by the State Government was necessary before release of he respondent No. 7 and before deputing the petitioner in place of the respondent No. 7. But admittedly no such consultation had taken place. Mr Dutta explained that this point raised by the petitioner was summarily rejected by the Secretary to the Government of Assam, Education Department in the impugned order dated 18.2.96 with the observation that as on 15.5.97, the office of the Additional Director of Education (Hills), Assam. Haflong had not been entrusted to the NC Hills Autonomous District Council. Mr Dutta vehemently argued that since the original order of transfer of the petitioner to the office of the Additional Director of Education (Hills), Assam, Haflong and of the respondent No. 7 from the Office of the Additional Director of Education (Hills), Assam, Haflong has been passed on 11.9.97, the date 15.5.97 has no relevance at all. Mr Dutta further submitted that as on 11.9.97 when the aforesaid transfer order was passed, the said office of the Additional Director of Education (Hills), Assam, Haflong, had been placed under the administrative control of the NC Hills Autonomous District Council as would be clear from the WT Message dated 12.8.97 from the Secretary to the Government of Assam, Education Department, a copy of which has been annexed to the writ petition as Annexure-H.