Polen Borah v. The State of Assam and 4 Ors

ORDER Date : 10.06.2024

Heard Mr. J. Abedin, learned counsel for the petitioner and Mr. S. Bhuyan, learned Standing Counsel, Higher Education Department as well as Mr. S. Bora, learned Standing Counsel, BTC.

¶2The petitioner by way of instituting the present proceeding has presented a challenge to an order dated 12.11.2021, by which he was transferred from Goreswar College, Goreswar to Khoirabari College, Khoirabari.

¶3The petitioner herein pursuant to an advertisement dated

10.05.1999 had submitted his candidature against the Grade-III post so advertised in Goreswar College. The petitioner on being selected by the Selection Committee came to be appointment as a Grade-III employee in the said college on 01.09.1999. Although the services of the petitioner was not provincialized along with the services of the other teaching and non-teaching staff in the said college upon enactment of the Assam College Employees (Provincialization) Act, 2005 (in short, 'the Act of 2005), subsequently the services of the petitioner being approved on 21.12.2012 by the Bodoland Territorial Council (in short, 'BTC) against the post of Junior Assistant, the services of the petitioner came to be adjusted against a regular vacant post, vide an order dated 22.04.2013. The petitioner Page No.# 3/5 accordingly continued in the post of Junior Assistant in Goreswar College. The petitioner received an order dated 12.11.2021 issued by the Director of Education, BTC, by which he was transferred and posted to Khoirabari College, Khoirabari as a Junior Assistant against a vacant post arising on account of the incumbent therein being promoted to the higher cadre.

¶4The petitioner being aggrieved submitted representations before the authorities praying for cancellation of the said order of transfer on his personal grounds as well as on the ground that the said order was so issued in violation of the provisions of the Act of 2005.

¶5The provisions of Section 3(c) of the Act of 2005 being relevant to the issue arising in the present proceeding is extracted hereinbelow. "3. Employees to be provincialised Subject to the provisions of Article 30 and 309 of the Constitution of India, all employees of the Colleges, save and except the employees who exercise option to continue in the existing terms and conditions of service under clause (d) below, shall be deemed to have become the employees of the Government on and from the date on which the Colleges have been brought under the deficit system of grants-in-aid, on the following terms and conditions, namely :- .......

(c) The posts in each provincialised College shall constitute Page No.# 4/5 an independent cadre for each category of employees including the post of the Principal. No inter cadre transfer from one college to another shall be allowed. Government may, however, for reasons to be recorded in writing, and in public interest, transfer a Principal from one Collage to another."

¶6In terms of the provisions of Section 3(c) of the said Act of 2005, each provincialised College is construed to constitute an independent cadre for each category of employees except the post of Principal of the college. It is further provided that save and except the cadre of Principal, no inter cadre transfer from one college to another including mutual transfer shall be permissible.

¶7In view of the said position, the order dated 12.11.2021 having the effect of transferring the petitioner from one college to another, cannot be held to be a valid order, inasmuch as, the same was so issued in clear violation of the provisions of Section 3(c) of the said Act of 2005 and, accordingly, the same cannot be permitted to continue.

¶8In the present proceeding, the Principal-in-charge, Goreswar College, Goreswar has filed an affidavit and therein by highlighting that the services of the petitioner in the said college to be indispensable had also contended that the matter was taken up with the respondent authorities for reconsideration of the said order of transfer.

¶9In view of the above position, the order dated 12.11.2021 being so issued in the violation of the provisions of the Section 3(c) of the Act of 2005, the same is not sustainable and accordingly stands interfered with Page No.# 5/5 by this Court. Consequently, the petitioner herein is permitted to continue to serve in Goreswar College, Goreswar as before.

¶10With the above observation and direction, this writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010198682021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHAL PRADESH)o CaseoNo.o:oWP(C)/6245/2021o POLENoBORAHo S/O.oARABINDAoBORAH,oVILL.oRANGMAHAL,oP.S.oGORESWAR,o DIST.oBAKSA,oBTC,oASSAM,oPIN-781366. VERSUSo THEoSTATEoOFoASSAMoANDo4oORSo REP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM,o HIGHERoEDUCATION,oDISPUR,oGUWAHATI-781006. 2:THEoSECRETARYoOFoEDUCATIONoDEPTT. oKOKRAJHARoBTCoASSAMoPIN-783370. 3:THEoDIRECTORoOFoEDUCATION oKOKRAJHARoBTCoASSAMoPIN-783370. 4:THEoGOVERNINGoBODYo(G.B.)oOFoGORESWARoCOLLEGE oREP.oBYoITSoPRESIDENT oP.O.oANDoP.S.oGORESWAR oDIST.oBAKSAoASSAMoPIN-781366. 5:THEoPRINCIPALoCUMoSECRETARYoOFoGORESWARoCOLLEGE oGORESWAR oP.O.oGORESWAR oDIST.oBAKSA oBTCoASSAM oPIN-781366o AdvocateoforotheoPetitionerooooo:oMRoHoRoAoCHOUDHURYo AdvocateoforotheoRespondento:oSC,oHIGHERoEDUoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR