Gauhati High Court
Page No.# 1/ vs The State Of Assam And 6 Ors on 25 March, 2026
Page No.# 1/11
GAHC010014452026
2026:GAU-AS:4327
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/400/2026
ASHIK IKBAL
S/O MD. AZAHAR ALI, R/O VILL. AND P.O. ALOPATI, P.S. ALOPATI CHAR,
DIST. BARPETA, ASSAM, PIN 781308 SERVING AS ASSTT. TEACHER,
KAMARPARA, L.P. SCHOOL AT VILL. KAMARPARA UNDER KARAIKHAITY
C.R.C. OF CHENGA EDUCATION BLOCK, DIST. BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE DEPTT. OF
SCHOOL EDUCATION, ASSAM, DISPUR, GUWAHATI 781006
2:THE SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI 781006
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 781019
4:THE DIST. COMMISSIONER
BARPETA DIST.
AT WARD NO. 5
P.O. AND P.S. BARPETA
ASSAM
PIN 781301
Page No.# 2/11
5:THE DIST. ELEMENTARY EDUCATION OFFICER
BARPETA
P.O. BARPETA
DIST. BARPETA
ASSAM
PIN 781301
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
CHENGA EDUCATION BLOCK
P.O. CHENGA
DIST. BARPETA
ASSAM
PIN 781305
7:THE HEADMISTRESS
KAMARPARA L.P. SCHOOL
VILL. KAMARPARA
P.O. PATHIMARI
(UNDER KARAIKHAITY CRC) OF CHENGA EDUCATION BLOCK
DIST. BARPETA
ASSAM
PIN 78130
Advocate for the Petitioner : MR J ABEDIN, MR. D K AGARWALA,MS B B AHMED,MR Z
HUSSAIN
Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM,SC, FINANCE
Page No.# 3/11
BEFORE
HONOURABLE MR. JUSTICE KARDAK ETE
ORDER
Date : 25.03.2026 Heard Mr. J. Abedin, learned counsel for the petitioner. Also heard Ms. S. Chutia, learned Standing Counsel, Elementary Education Department Nos. 1, 3, 5 & 6, Mr. P. Saikia, learned State Counsel for the respondent No. 4 and Mr. Chaliha, learned Standing Counsel, Finance Department, for respondent No. 2. None appears for respondent No. 7 despite service of notice.
2. Challenge made in this writ petition is to the order dated 26.12.2025, passed by the District Commissioner, Barpeta, whereby as many as 11 (eleven) Post Graduate Teacher, Graduate Teacher and Assistant Teachers, including the petitioner, have been transferred and posted to various schools under Barpeta District. By the said order, the petitioner has been transferred from Kamarpara L.P. School to 1898 Parua Chandanpur L.P. School under Chenga Education Block.
3. The case of the petitioner, in brief, is that he was initially appointed as a contractual teacher under SSA, Assam on 03.09.2017 in Kedighi Dakshin Lehi L.P. School in the district of Barpeta. Thereafter, he was transferred to Kamarpara L.P. School on 05.08.2025 on mutual transfer. His service was regularized vide order dated 02.09.2024, issued by the Director, Elementary Education, Assam.
4. The petitioner joined Kamarpara L.P. School pursuant to the order dated Page No.# 4/11 05.08.2025. As per the report of the Block Elementary Education Officer, the school has about 60 numbers of pupils and as per the Right to Education Act, 2009, the school requires minimum 2 (two) of teachers. It is contended that besides the Headmistress, the petitioner is the only teacher to impart education to the pupils of the said school, which is situated in the backward char area.
5. While the petitioner was serving in Kamarpara L.P. School, the impugned order dated 26.12.2025, was issued by the District Commissioner, Barpeta transferring as many as 11 (eleven) Post Graduate Teacher, Graduate Teacher and Assistant Teachers, including the petitioner to 1898 Parua Chandanpur L.P. School from Kamarpara L.P. School under Chenga Educatiion Block.
6. Mr. J. Abedin, learned counsel for the petitioner, submits that the petitioner has joined Kamarpara L.P. School only on 05.08.2025 on mutual transfer in view of the ailment of his old aged parents. The impugned transfer order, insofar as it relates to the petitioner, is in violation of the provisions of Assam Elementary and Secondary School Teachers' (Regulation of Posting and Transfer) Act, 2020 (hereinafter referred to as 'Act of 2020') and the Assam Elementary and Secondary School Teachers' (Regulation of Posting and Transfer) Rules, 2022 (hereinafter referred to as 'Rules of 2022'), inasmuch as the Kamarpara L.P. School has about 63 numbers of pupils, against which there are only 2 (two) teachers, including the petitioner, who had joined only in the month of August, 2025 that too on mutual transfer. It is further submitted that under the Act of 2020, the District Commissioner has no authority to transfer a teacher as the authority competent to transfer is the appointing authority and therefore, the impugned order is without jurisdiction.
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7. Per contra, Ms. S. Chutia, learned Standing Counsel, Elementary Education Department, and Mr. P. Saikia, learned State Counsel for respondent No. 4, while referring to the Notification dated 13.12.2022, issued by the Secretary to the Government of Assam, School Education Department, and the Notification dated 28.11.2023, issued by the Additional Chief Secretary to the Government of Assam, General Administrative Department, submit that the District Commissioner is empowered with the authority to transfer the gazetted and non-gazetted officers posted by any department in the district within his/her jurisdiction as per the demands of the administrative expediency and the District Commissioner, except the 6th Scheduled districts and area, has been directed to give effect to the provisions of the Rules of 2022. Therefore, the District Commissioner has the power and authority to transfer the teachers including the petitioner within the district.
8. Ms. S. Chutia, learned Standing Counsel, Elementary Education Department, further submits that the petitioner was transferred from Kamarpara L.P. School to 1898 Parua Chandanpur L.P. School on account of administrative exigency and in order to maintain the prescribed Pupil Teacher Ratio (PTR). Pursuant to the impugned transfer order, the petitioner was released on 02.01.2026. The 1898 Parua Chandanpur L.P. School is a zero-teacher school having 27 (twenty seven) enrolled students without a single teacher, whereas the Kamarpara L.P. School has about 60 (sixty) enrolled students with 2 (two) teachers, including the petitioner. In such circumstances, the transfer was necessitated to ensure that the students of zero-teacher school are not deprived of their statutory right to elementary education and to ensure compliance of the Page No.# 6/11 prescribed PTR norms. Therefore, she submits that there is no illegality in the transfer of the petitioner from Kamarpara L.P. School to 1898 Parua Chandanpur L.P. School and the District Commissioner, having the power and authority to transfer the teacher within the district in terms of the aforesaid notifications, has acted within his jurisdiction and authority in issuing the impugned order.
9. I have considered the submissions of learned counsel for the parties and also perused the materials available on record.
10. The transfer and posting of the teachers of elementary and secondary schools are regulated by the Assam Elementary and Secondary School Teachers' (Regulation of Posting and Transfer) Act, 2020 and the Assam Elementary and Secondary School Teachers' (Regulation of Posting and Transfer) Rules, 2022, which is framed under the said Act of 2020.
11. Section 6 of the Act of 2020 provides for inter-school transfer norms of teachers within the district, which is quoted herein below:-
"6. Inter school transfer norms of Teachers within the district. The Government and the Competent Authority shall be guided by the following norms in respect of inter school transfer of Teachers within the district:-
(a) The Teachers may be transferred from one Elementary School to another Elementary School within the district in accordance with the requirement of Teachers in the school as per norms as provided under Sections 19 and 25 read with the Schedule of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No. 35 of 2009) and rule 21 of the Assam Right of Children to free and compulsory Education Rules, 2011.
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(b) The Teachers may be transferred from one Secondary School to another Secondary school within the district in accordance with the requirement of Teachers in the school and also considering the subject-wise requirement. The overall PTR of a Secondary School is 40:1 which means one Teacher against forty students and there must be minimum 10 students for a particular subject for providing a Teacher for that subject.
(c) The Application for transfer by a Teacher has to be addressed to the District Level Committee and submitted through the concerned District Elementary Education Officer or the Inspector of Schools, as the case may be, in such Form as may be prescribed, who shall place the Application before the District Level Committee for consideration.
(d) The transfer of Teacher from one school to another school within the district may be allowed by the Competent Authority strictly in accordance with the PTR norms. Teacher from a High PTR school may only be transferred to a school having Low PTR. Under no circumstance Teacher from a Low PTR school shall be transferred to a High PTR School except under Section 9 of this Act.
(e) The effect of all the transfers shall have to be done during the period of summer vacation in order to minimize academic loss.
(f) The District Elementary Education Officer or the Inspector of schools and the District Level Committee shall take action for transfer and posting of Teachers in schools in accordance with the PTR norms and in compliance with the provisions of this Act, so that the transfer orders can be issued within the summer vacation, by the concerned Appointing Authority.
(g) In the event of receipt of more than one application for transfer, the first preference shall be given to Differently Abled Teachers and for other Teachers it shall be decided on the inter-se-seniority of the Teachers:
Provided that Differently Abled female Teacher shall be preferred over a male Teacher within this category and weightage between two Differently Abled Teachers shall be given on the basis of the respective percentage of disability."
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12. Section 9 of the Act of 2020 provides the power of Deputy Commissioner/District Commissioner, which is reproduced herein below:-
"9. Power of Deputy Commissioner. In case of exigency for maintenance of proper academic atmosphere in a school or for maintaining peace and tranquillity or safety and security of a female Teacher, the Deputy Commissioner of a district, after observing such formalities as may be prescribed, if satisfied that transfer of a Teacher is essential for anyone of the said grounds, may, refer to the Competent Authority for transfer of a teacher, even from a Low PTR school. The Competent Authority shall immediately consider such proposals of the Deputy Commissioner and recommend to the concerned Appointing Authority for issue of transfer order:
Provided that on transfer of such a Teacher from a Low PTR school, the Appointing Authority shall immediately post a Teacher in that school to maintain the PTR norms as per provisions of this Act, either by direct recruitment or through transfer from a High PTR school."
13. A bare reading of the provisions of Section 6 , inter alia, shows that the teachers can be transferred from one elementary school to another elementary school within the district in accordance with the requirement of teachers in the school as per norms as provided under the Right of Children to Free and Compulsory Education Act, 2009 and the Assam Right of Children to Free and Compulsory Education Rules, 2011. The application for transfer of a teacher has to be addressed to the District Level Committee and submitted through the concerned District Elementary Education Officer or the Inspector of Schools, who shall place the application before the District Elementary Education Committee for consideration. The transfer may be allowed by the competent authority strictly in accordance with the PTR norms. It also provides that the District Elementary Education Officer or the Inspector of Schools and the District Level Committee shall take action for transfer and posting of the teachers in the schools in accordance with the PTR norms so that the transfer orders can be Page No.# 9/11 issued by the concerned appointing authority. Thus, the authority competent to transfer teachers is the appointing authority under the Act of 2020.
14. Section 9 of the Act of 2020 empowers the Deputy Commissioner/District Commissioner to refer to the competent authority for transfer of a teacher even from a Low PTR school in case of exigency for maintenance for proper academic atmosphere in the school or for maintaining peace and tranquility or safety and security of a female teacher. It reflects that the competent authority shall consider the proposals of the District Commissioner and recommend to the concerned appointing authority for issue of transfer order.
15. Perusal of the above provisions of the Act does not indicate that the District Commissioner has been empowered to transfer the teachers of elementary and secondary school within the district. The statutory scheme only empower the District Commissioner to refer the cases for transfer of the teachers to the competent authority in case of exigency for maintaining proper academic atmosphere in the school, for maintaining peace and tranquility and safety and security of a female teacher. Thus, under the Act, the District Commissioner is only empowered to refer to the competent authority for transfer of a teacher in above 3 (three) contingencies.
16. Regard being had to the Notification dated 13.12.2022, issued by the Secretary to the Government of Assam, School Education Department, and the Notification dated 28.11.2023, issued by the Additional Chief Secretary to the Government of Assam, General Administrative Department, on careful consideration, it is evident that the said Notifications only empower the transfer Page No.# 10/11 and posting of the gazetted and non-gazetted officers posted in the particular district as per the demands of administrative expediency and to give effect to the provisions of the Rules of 2022, particularly in the matter of rationalization of the teachers. However, the said Notifications do not empower the District Commissioner to transfer teachers within the district, which would otherwise in derogation of the statutory provisions governing such transfers as an executive orders cannot override the statutory provision.
17. As regards the grounds of transfer, this Court find force in the submission of learned Standing Counsel, Elementary Education Department that the petitioner has been transferred on account of administrative exigency and in order to maintain the prescribed Pupil Teacher Ratio (PTR) as the school, namely, 1898 Parua Chandanpur L.P. School, where the petitioner has been transferred, was a zero-teacher school having 27 (twenty seven) enrolled students. Thus, the grounds for transfer cannot be faulted, however, the authority effecting the transfer appears to have no jurisdiction and not the authority competent to transfer the teachers in the district, except to the limited extent of making a recommendation to the competent authority on the three contingencies, as noted hereinabove.
18. It is settled law that transfer of an employee is an incidence of service. Ordinarily, the Court is loathe to interfere with the transfer and posting of an employee unless the same is issued in violation of statutory provisions by the authority not competent or it is actuated with mala fide. In the present case, as per the Act of 2020 and the Rules framed thereunder, the authority competent to transfer the teachers of elementary schools is the appointing authority and Page No.# 11/11 not the District Commissioner. The District Commissioner is only empowered to recommend to the competent authority for consideration of transfer on 3 (three) contingencies as prescribed under the Act.
19. In view of the discussion made herein above, I am of the considered view that the District Commissioner has no jurisdiction to transfer any teacher from one school to another within the district, as neither the Act of 2020 nor the Rules framed thereunder empower the District Commissioner to issue order of transfer in respect of the teachers serving in the schools within his jurisdiction. The power of the District Commissioner is limited to making a recommendation to the competent authority for consideration of transfer in specified contingencies. Accordingly, the impugned order of transfer dated 26.12.2025, passed by the District Commissioner, Barpeta, insofar as it relates to the petitioner, is interfered with and set aside. However, since the interference of the impugned order of transfer of the petitioner is only on the ground that the same was issued by the District Commissioner without jurisdiction/ authority, the respondent authorities are at liberty to pass a fresh order of transfer, if so required in the administrative exigency, strictly in accordance with the provisions of the Act of 2020 and the Rules framed thereunder.
20. Writ petition stands disposed of accordingly.
Comparing Assistant