Gauhati High Court
Md Taj Uddin Laskar vs The State Of Assam And 5 Ors on 6 January, 2023
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010002592023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/55/2023
MD TAJ UDDIN LASKAR
S/O- LATE MOTOFAR ALI LASKAR,
RESIDENT OF VILLAGE- BAHADURPUR,
P.O.- RANGAUTI,
PIN- 788155
DISTRICT- HAILAKANDI, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION,
DISPUR, GHY-6.
2:THE SELECTION BOARD
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION ELEMENTARY DEPARTMENT
DISPUR
GHY-6.
3:THE DIRECTOR OF STATE COUNCIL OF EDUCATIONAL RESEARCH AND
TRAINING
ASSAM
KAHILIPARA
GUWAHATI-19.
4:THE ASSAM PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY TO THE GOVT. OF ASSAM
Page No.# 2/6
JAWAHARNAGAR
GUWAHATI- 29.
5:THE DEPUTY COMMISSIONER
HAILAKANDI
DISTRICT- HAILAKANDI
ASSAM.
6:ABDUL NOOR BARBHUIYAN
PRINCIPAL
DIET
CACHAR
UDHARBOND
DIST.- CACHAR
ASSAM
PIN- 788030
Advocate for the Petitioner : MR. A R BHUYAN
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
06.01.2023 Heard Mr. A R Bhuiyan, learned counsel for the petitioner and Mr. B Koushik, learned Standing counsel, School Education Department, Assam for the respondent Nos. 1, 2 & 3. Also heard Ms. P Sarma, learned counsel appearing on behalf of Mr. T J Mahanta, learned Standing counsel, APSC for the respondent No. 4 as well as Mr. S R Baruah, learned Government Advocate, Assam for the respondent No. 5.
2. The petitioner is a senior Lecturer in Arts education in the District Institute of Educational Training (DIET) and pursuant to the Notification No. AEE.77/2016/43 dated 19.12.2018 the petitioner on 21.12.2018 joined as Principal In-charge of DIET Karimganj. While serving at Karimganj DIET, the State Government in the Elementary Education Department by Notification No. AEE.260/2020/153 dated 28.12.2021, Page No.# 3/6 transferred the petitioner and posted him as Senior Lecturer at DIET, Hailakandi and further, by the said Notification dated 28.12.2021 the said authority temporarily allowed the petitioner to hold the current charge of In-charge Principal of DIET, Hailakandi along with financial powers under the provisions of FR 49(C) of FRs & SRs and as per Finance (Esstt-A) Departments' Office Memorandum No. FEG 18/90/46 dated 10.04.2000, without statutory power w.e.f. the date of taking over charge until further order or till full-fledged Principal is posted, whichever is earlier, in addition to his own duties. Since 01.01.2022, the petitioner on his joining on said transfer dated 28.12.2019, is serving as Senior Lecturer cum Principal in-charge at DIET Hailakandi.
3. It is stated that the Assam District Institute of Educational Training (DIET) Service Rules, 2010, a statutory Service Rule under Article 309 of the Constitution of India, regulating the recruitment and conditions of service of persons appointed to the Assam District Institute of Educational Training (DIET) Service came into force w.e.f. 29.12.2010 on the publication of the said 2010 Rules in the Assam Gazette (Extraordinary).
4. As per the provision of Rule 5 of the said 2010 Service Rules, the post of Principal of DIET is to be filled up by promotion from the select list of Vice- Principal/Senior Lecturer having not less than 10 years of experience as Lecturer/Senior Lecturer or Vice-Principal.
5. The petitioner's name figured at seniority position No. 37 in the Gradation List of Senior Lecturers of DIET that was published on 26.02.2021 by the Director of Elementary Education, Assam.
6. Being not satisfied with his seniority position as reflected in the said Final Gradation List of Senior Lecturers of DIET published on 26.02.2021, the petitioner preferred a Writ Petition, being WP(C) No. 5761/2022, wherein the Court on 02.09.2022 while issuing notice to the respondents therein, in the interim suspended the said Gradation List dated 26.02.2021 pertaining to the Seniority of the Senior Lecturers of DIETs of the State respondents.
7. The State Government in the Department of School Education by Notification Page No.# 4/6 No. eCF No. 250346/8 dated 22.12.2022 transferred one Smt. Dulami Herenz, Principal of DIET, Dhemaji and posted her at DIET, Lakhimpur in the same capacity against the existing vacant post in the interest of public service providing further that the senior most Lecturer of DIET, Dhemaji shall take over the charge of In-charge Principal of DIET, Dhemaji from said Smt. Dulami Herenz immediately.
8. The State Government in the Department of School Education by the same Notification dated 22.12.2022 vide No. eCF No. 250346/8-A transferred the respondent No. 6, the Principal of DIET, Cachar, Udharbond and posted him at DIET, Hailakandi in the same capacity against the existing vacant post in the interest of public service allowing one Dr. Jibendu Dutta, Senior Lecturer of DIET, Cachar to take over the charge of In-charge Principal of DIET, Cachar from the respondent No. 6.
9. The petitioner being aggrieved with such transfer of the respondent No. 6 as the regular Principal of DIET, Hailakandi has preferred this petition stating that the post of Principal of DIET as provided under the said statutory Rules 2010 can be filled up by way of promotion only and the existing vacant post of Principal of DIET cannot be filled up by way of transfer.
10. Pursuant to the order of the Court dated 04.01.2023, the respondent State Government in the Department of School Education Assam through the learned counsel for the said department placed the relevant written information under No. eCF No. 250346/12 dated 05.01.2023 in the matter, which goes to show that said Smt. Dulami Herenz, Principal of DIET, Dhemaji submitted an application before the Director of SCERT, Assam for her transfer from DIET, Dhemaji to DIET, Lakhimpur due to her family/personal problem against the existing vacant post due to the retirement of the Regular Principal of DIET, Lakhimpur on 31.10.2022.
11. Similarly, with regard to the respondent No. 6, it is seen that the MLA of Cachar recommended the transfer of respondent No. 6, Principal of DIET, Cachar to DIET, Hailakandi against the existing vacant post requesting the authority concerned to allow one Dr. Jibendra Dutta, a Senior Lecturer of DIET, Cachar to hold the current Charge of Principal of DIET, Cachar in place of respondent No. 6.
Page No.# 5/6
12. Those requests were forwarded to the authorities in the Department of School Education of the State by the Directorate of SCERT, Assam and matters were accordingly placed before the authority concerned.
13. Since the regular Principals of DIETs at Dhemaji and Cachar did not complete two years of their continuous services as Principals in their respective DIETs, the matter was placed before the concerned Minister for necessary approval.
14. Accordingly, the Departmental Minister concerned approved such transfer, however, with the observations that "both the transfers may be approved in public interest", though in the case of said Smt. Dulami Herenz Principal of DIET, Dhemaji it was at her request and in the case of the respondent No. 6, it was at the request of the MLA of Cachar for his transfer to DIET, Hailakandi with specific request that one Dr. Jibendu Dutta should be allowed to hold the charge of In-charge Principal at DIET, Cachar.
15. Accordingly, by the impugned Notification vide No. eCF No. 250346/8 dated 22.12.2022 Smt. Dulami Herenz, Principal of DIET, Dhemaji has been transferred and posted her at DIET, Lakhimpur in the same capacity against the existing vacant post in the interest of public service and similarly, vide No. Notification No. eCF No. 250346/8- A dated 22.12.2022 the State Government in the Department of School Education transferred the respondent No. 6 from Principal of DIET, Cachar, Udharbond and posted him at DIET, Hailakandi in the same capacity against the existing vacant post in the interest of public service allowing Dr. Jibendu Dutta, Senior Lecturer of DIET, Cachar to take over the charge of In-charge Principal of DIET, Cachar from the respondent No. 6.
16. The petitioner has submitted that the transfer of the respondent No.6 is not only in violation of said 2010 Rules but only to accommodate the said respondent and Dr. Jibendu Dutta, Senior Lecturer of DIET, Cachar that too in the personal request of the MLA, Cachar and therefore, such transfer order is arbitrary in nature.
17. Issue Rule, returnable by 8 (eight) weeks.
18. As Mr. B Koushik, learned Standing counsel, Department of School Education;
Page No.# 6/6 Ms. P Sarma, learned counsel appearing on behalf of Mr. T J Mahanta, learned Standing counsel, APSC and Mr. S R Baruah, learned Government Advocate, Assam have accepted the notices on behalf of the respondent Nos. 1 to 3; 4 and 5 respectively, no formal notice need to be issued to those respondents.
19. Petitioner shall serve requisite extra copies of this writ petition including the annexures appended thereto to Mr. B Koushik, learned Standing counsel, School Education Department, Ms. P Sarma, learned counsel and Mr. S R Baruah, learned Government Advocate, Assam by tomorrow i.e., 07.01.2023 obtaining necessary acknowledgments from them in that regard.
20. Considering the relevant instructions placed before the Court today, noted above, it is found that the balance of convenience for issuance of interim order is in favour of the petitioner.
21. As such the impugned order of transfer of the respondent No. 6 as Principal of DIET, Hailakandi in terms of the Notification No. eCF No. 250346/8-A dated 22.12.2022 issued by the State Government in the Department of School Education shall remain suspended until further order of the Court.
22. The relevant instructions placed before the Court today by the Department of School Education, Assam through its learned counsel be kept as part of the record.
JUDGE Comparing Assistant