Page No.# 1/5 GAHC010099512024 2025:GAU-AS:6149 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2646/2024 EMDADUR RAHMAN S/O- MOHAMMAD ABAS ALI SULTAN, R/O- VILL- DURABANDHIGAON, P.O. MOIRABARI, DIST.- MORIGAON, ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF ASSAM 2:SECRETARY TO THE GOVERNMENT OF ASSAM SECONDARY SCHOOL EDUCATION DEPARTMENT DISPUR GHY-6 3:DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY-19 4:INSPECTOR OF SCHOOL MORIGAON DISTRICT CIRCLE MORIGAO Advocate for the Petitioner : MR. D P CHALIHA, MS M ROY Advocate for the Respondent : GA, ASSAM, SC, SEC. EDU. BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 16.05.2025 Heard Mr. D.P. Chaliha, learned senior counsel assisted by Ms. M. Page No.# 2/5 Roy, learned counsel for the petitioner; Ms. K. Phukan, learned Government Advocate for the respondent No. 1; and Mr. B. Kaushik, learned standing counsel for the respondent Nos. 2 & 4. 2. The grievance of the petitioner, being sought to be addressed in this petition, invoking the extra-ordinary jurisdiction of this court, under Article 226 of the Constitution of India, is that the petitioner, vide order dated 02.11.2007, was appointed as Science Graduate Teacher in the Sutar Gaon Public High School, Nagaon and the said school was provincialized w.e.f. 01.01.2013. Thereafter, the State Government promulgated Assam Elementary and Secondary School Teachers (Regulation or Posting and Transfer) Act, 2020 (2020 Act hereinafter) to regulate posting and transfer of the employee in the Education Department. 2.1. Thereafter, the petitioner had submitted an application on 23.08.2020, requesting for inter district transfer from Nagaon to Morigaon district and the department, after processing the same, had accepted his request for transfer to Morigaon. Accordingly, the Director of Secondary Education Department, vide order dated 02.08.2023, approved the request of the petitioner, as per recommendation of the State Level Committee (SLC hereinafter). 2.2. The pleaded case of the petitioner is that in Clause No. 8 of the said order dated 02.08.2023, it was stated that the Teacher concerned shall not claim seniority over the existing staff of the newly posted school. Thereafter, as per approval of the District Level Committee (DLC hereinafter), he was posted at Borthal Doloi Gaon Higher Secondary School, under Morigaon district and he joined there on 24.08.2023. Page No.# 3/5 2.3. Further pleaded case of the petitioner is that inter district transfer is governed by the provision of Section 7 of the 2020 Act, wherein it is stated that teachers working in a district continuously for 10 years or more can apply for transfer to his or her home district or to a nearest contagious district. Section 6 of the 2020 Act also provides for specific provision for transfer of teachers within the district or inter district. And the petitioner had made his request, under Section 7 of the 2020 Act, for inter-district transfer, which clearly states that one can seek transfer if he/she is working in a district for 10 years or more and that being so, the grounds for seeking transfer under Section 7 cannot be termed as a transfer at his/her own request. And seniority of the teachers as has been mentioned in Section 5 of the Amended Act, 2023, will not affect a transfer, which is done under Section 7 of the 2020 Act, since the Section states that the Government in the competent authority, shall be guided by the norms in respect of inter district transfer and Sections 10 & 11 having categorically mentioned the grounds for seeking transfer and that the transfer will not affect seniority. 3. Mr. Chaliha, learned senior counsel appearing for the petitioner submits that the Clause No. 8 of the order, dated 02.08.2023, provides that the teacher concerned shall not claim seniority over the existing staff of the newly posted school and on reporting in the school allotted by the DLC of the newly posted district, the seniority of the teacher will be determined from the date of reporting in the school. 3.1 But, taking this court through the Section 11 of the 2020 Act, Mr. Chaliha submits that the said Section provides that the transfer will not affect seniority. It is also stated in the said Section that the transfer of a teacher made under this Act shall not in any way affect the original seniority in the respective cadre of the service and as such, the Clause No. 8 of the order, dated Page No.# 4/5 02.08.2023, is arbitrary and contrary to the statutory provision and therefore, the same cannot be allowed to stand. On such count, Mr. Chaliha has contended to set it aside. 4. On the other hand, Mr. Kaushik, learned standing counsel for the respondent Nos. 2 & 4 submits that perhaps while passing the order dated 02.08.2023, the provision of Section 11 of the 2020 Act eschewed consideration of the Director and as such, the matter may be remanded to the Director to consider the case of the petitioner afresh taking into account the provision of Section 11 of the 2020 Act. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the order dated 02.08.2023, and also gone through the provision under Section 11 of the 2020 Act. 6. A cursory perusal of the Section 11 of the 2020 Act reveals that the transfer of a teacher, made under this Act shall not in any way affect the original seniority in the respective cadre of the service. But, while passing the impugned order dated 02.08.2023, the Director of Secondary Education had failed to take note of the said Section and incorporated Clause No. 8 in the transfer order dated 02.08.2023, wherein it is stated that the Teacher concerned shall not claim seniority over the existing staff of the newly posted school. But, the Act itself provides that the transfer of a Teachers made under this Act, shall not in any way affect the original seniority in the respective cadre of the service. 7. It is not in dispute that the transfer order was passed under Section 7 of the 2020 Act and the Director has no discretion to disobey the mandate of the law, as provided under Section 11 of the 2020 Act. Page No.# 5/5 8. Thus, having examined the order dated 02.08.2023, in the light of the provision under Sections 7 & 11 of the 2020 Act, this court is of the view that the Clause No. 8 of the aforesaid order is arbitrary and illegal and therefore, the same is liable to be interfered with. 9. Accordingly, the Clause No. 8 of the order dated 02.08.2023, stands set aside and quashed. Consequently, the seniority of the petitioner will be governed by the Section 11 of the 2020 Act. 10. In terms of above, this writ petition stands disposed of. 11. The petitioner shall obtain a certified copy of this order and place the same before the authority within a period of one week from today. The parties have to bear their own costs. JUDGE Comparing Assistant