Page No.# 1/8 GAHC010002222024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/55/2024 SIMANTA KUMAR DEKA S/O SRI KHAGESWAR DEKA, R/O VILL AND P.O.-SARTHEBARI, DIST- BARPETA, ASSAM, PIN-781307 VERSUS THE STATE OF ASSAM AND ANR THROUGH THE SECRETARY TO THE GOVT. OF ASSAM, SCHOOL EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-1 Advocate for the Petitioner : MR. I H SAIKIA, MR K KASHYAB,MR. M R CHOUDHURY,MR. K KALITA,MR. B BORAH Advocate for the Respondent : SC, SEC. EDU., Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 23.04.2025 Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. N.J. Khataniar, learned Standing counsel for the respondents. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged his transfer notification issued under memo No. E- 363911/2, dated 16.11.2023, by the Secretary to the Government of Assam, School Education Department; the order issued under memo No. E-421166/12, dated 28.12.2023, by the Secretary to the Government of Assam, School Education Department and to issue direction to the respondent authorities to allow the petitioner to continue in his present place of posting as District Elementary Education Officer, Nalbari or to modify the impugned transfer notification issued under memo No. E-363911/2, dated 16.11.2023, by posting the petitioner in a nearby place in the interest of his medical treatment in terms of the Government Transfer Policy of Spouses, dated 21.05.1987 (Annexure-4 to the writ petition). 3. Mr. Saikia, learned counsel for the petitioner submits that the petitioner was serving as District Elementary Education Officer (DEEO) of Nalbari district and his wife is working as Assistant Professor in Bhattadev University, Pathsala, and the petitioner has issues for which he and his wife are undergoing medical treatment and the doctor has advised them to stay together. But, vide impugned transfer notice dated 16.11.2023, the petitioner had been transferred and posted as IS and DEEO of Golaghat district, which is located at about 400 kilometres from the place where his wife has been staying. Mr. Saikia also Page No.# 3/8 submits that there is one Office Memorandum dated 21.05.1987, which provides for posting of the spouses at the same station and since the petitioner was transferred from Nalbari, he had approached this Court by filing one writ petition, being WP(C) No. 7013/2023, and vide order dated 05.12.2023, this Court was pleased to direct the respondent No. 1 to consider the representation of the petitioner in terms of the Office Memorandum dated 21.05.1987, for his ongoing medical treatment. But, vide impugned order dated 28.12.2023, the prayer of the petitioner has been rejected ignoring the Office Memorandum dated 21.05.1987, and also ignoring the order of this Court dated 05.12.2023, and therefore, the petitioner has approached this Court by filing the present petition. Mr. Saikia further submits that the present place of posting of the petitioner is located at a distance of about 400 kilometres and being the DEEO of Golaghat district, he cannot leave the station also, and that he and his spouse are undergoing treatment as they are issue less and doctor has advised them to stay together, and on such count, the impugned transfer notification dated 16.11.2023, and also the impugned order dated 28.12.2023, passed by the respondent No. 1, are illegal and arbitrary, and therefore, it is contended to set aside the same. 4. Per contra, Mr. Khataniar, learned Standing counsel for the respondents, submits that the respondent authorities have filed an affidavit-in-opposition, wherein it is stated that the Office Memorandum dated 21.05.1987, is not applicable in the case of the petitioner as he and his spouse are serving in two different departments i.e. while the wife of the petitioner is working in Bhattadev University, Pathsala as Assistant Professor which comes under administrative control of Higher Education Department, the petitioner is working under administrative control of Department of School Education, and being their Page No.# 4/8 departments distinct and different, they are not entitled to the benefit of Office Memorandum dated 21.05.1987. It is also stated that the petitioner and his spouse can stay together as asked by their attending doctor during the vacation period, if so desired and even if the petitioner is posted in a nearby station, then also he will not be entitled to leave the station for each and every day to stay together with his wife, and that there is shortage of officers to post more than one officer in a single district and in the public interest, the petitioner has been posted in Golaghat district, and as such, there is no merit in this petition and therefore, Mr. Khataniar has contended to dismiss the same. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned transfer notification dated 16.11.2023 as well as the impugned order dated 28.12.2023, passed by the respondent No. 1 rejecting the representation filed by the petitioner and also perused the Office Memorandum dated 21.05.1987. 6. It appears from the Office Memorandum dated 21.05.1987 (Annexure-4), that as far as possible within the constraints of administrative feasibility, the wife and husband when both are Government servants, should be posted at the same station to enable them to lead a normal family life and to ensure the education and welfare of their children without experiencing any undue difficulty in discharging their responsibilities as parents on the one hand and productive workers on the other, more effectively. It also appears that some illustrations are given which are reproduced herein below: “(i) Where the spouses belong to the same state service, the cadre controlling authority may post the spouses at the same station. Page No.# 5/8 (ii) Where one spouse belongs to one state service and the other spouse belongs to another state service, the spouse with the longer service at a station may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station of the other spouse, or if there is no post in that station, to the nearest station where a post may be available. This guideline should apply in cases where one spouse belongs to an All India Service and the other spouse belongs to a State Government service. (iii) Where one spouse belongs to an All India Service/State Govt. Service and the other spouse belongs to a Public Sector Undertaking, either of the two may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station of the other spouse, or if there is no post in that station, to the nearest station where a post may be available. (iv) Where one spouse belongs to a Central Service and is posted within Assam and the other spouse belongs to a State Government Public Sector Undertaking or State Government service, the spouse employed under the public sector undertaking or under State Govt, may apply to the competent authority and the said authority may post the officer to the station of the other spouse or if there is no post in that station, to the nearest station where a post may be available.” 7. It is also stated that the aforesaid illustrations do not cover all the possible categories of cases which may arise and it is also not possible to anticipate all the categories of cases, and each case not covered by the above illustrations or under the guidelines outlined above, will have to be dealt with keeping in mind Page No.# 6/8 the spirit in which these guidelines have been laid down and the larger objective of ensuring that a husband and wife are as far as possible and within the constraints of administrative convenience, posted at the same station. 8. Indisputably, in the case in hand, the petitioner is working as IS and DEEO in Golaghat district and earlier, he was posted in Nalbari district and transferred vide transfer notification dated 16.11.2023. The petitioner had also filed one representation, but the same was also dismissed by the respondent No. 1, vide impugned order dated 28.12.2023, though vide order dated 05.12.2023, this Court in WP(C) No. 7013/2023, was pleased to direct the respondent No. 1 to consider the representation in terms of the Office Memorandum dated 21.05.1987. 9. Indisputably, the administrative department of the petitioner is Department of School Education and the administrative department of his spouse is Higher Education Department and their case is not covered under the aforesaid illustrations. However, it has been provided in the said Office Memorandum that a case which is not covered under those illustrations will have to be dealt with keeping mind the spirit in which those guidelines have been laid down and the larger objective of ensuring that a husband and wife are as far as possible and within the constraints of administrative convenience, posted at the same station. 10. It is also not in dispute that the petitioner and his wife are issue less. They are undergoing treatment, and they have been advised by Doctor to stay together. 11. It is well settled that “RIGHT TO MARRY AND TO FOUND A FAMILY,” though not a fundamental right, yet it is a basic human right recognized in Article 16 of the UNIVERSAL DECLARATION OF HUMAN RIGHTS. The family is Page No.# 7/8 the natural and fundamental group unit of society and is entitled to protection by society and the State. And India is a signatory to the said Charter of United Nations which has relation with Universal Declaration of Human Rights. The substance of the rights declared by the U.N. General Assembly in the Universal Declaration of Human Rights, is incorporated by the Constituent Assembly in the Constitution of India. 12. It is also not in dispute that the spouse of the petitioner is posted at Pathsala. Whereas, the petitioner is presently posted at Golaghat. The distance between both the places are about 400 km. Moreover, by virtue of his position and the responsibility attached to his post, it becomes practically impossible to leave the district head quarter. Though, it is argued by the learned standing counsel for the respondent authority, that during the holidays the petitioner and his spouse can stay together, yet, the said submission also left this Court unimpressed as it is not their case that treatment facilities are available at the place of posting of the petitioner. 13. The stands taken by the respondent authorities are taken note of. The case of the petitioner and his wife may not fall under the illustrations given in the Office Memorandum dated 21.05.1987 (Annexure-4). However, spirit of the same may be applied in their case. Since in the said memorandum it categorically stated that as far as possible within the constraints of administrative feasibility, the wife and husband when both are Government servants, should be posted at the same station to enable them to lead a normal family life and to ensure the education and welfare of their children without experiencing any undue difficulty in discharging their responsibilities as parents on the one hand and productive workers on the other, more effectively. 14. If the entire issue is examined in the light of humanitarian ground as well Page No.# 8/8 as the Office Memorandum dated 21.05.1987, and also in the light of the fact that the petitioner and his spouse are undergoing treatment for being issue less, this Court is of the view that the impugned order dated 28.12.2023, lacks human face and on such court the same fails to withstand the legal scrutiny. 15. Accordingly, the impugned order dated 28.12.2023, stands set aside and quashed. The matter stands relegated to the respondent No. 1, to re-consider the representation filed by the petitioner for being posted in a nearby station, keeping in mind that right to marry and to have family is a human right and also keeping in mind the spirit of the Office Memorandum dated 21.05.1987. 16. The aforementioned exercise has to be carried out within a period of one month from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent No. 1 within 15 days from today. 17. In terms of above, this writ petition stands disposed of. The parties have to bear their own cost. 18. Interim order passed earlier stands vacated. JUDGE Comparing Assistant