Judgment and Order (Cav)
1. Heard Mr. A. Barbora, learned senior counsel assisted by Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. M. Choudhury, learned Standing Counsel, Higher Education Department appearing on behalf of the official Respondents No. 1 and 2 and Mr. M.K. Choudhury, learned senior counsel, assisted by Mr. B. Chakraborty, learned counsel appearing for the private Respondent No.4.
2. Pursuant to the letter of the State Government in Higher Education Department bearing No. AHE.42/2015/7 dated 08.10.2015 and as per the provisions of Section 3(c) of the Assam College Provincialisation Act, 2005, as amended in 2012, and in the interest of public service; the Director of Higher Education (DHE), Assam by his order No. G(B)Misc./121/2013/Pt./98 dated 09.10.2015 transferred the Respondent No.4, Principal of K.C. Das Commerce College, Guwahati and posted him at Gauhati Commerce College, Guwahati and by the same order the DHE further transferred the petitioner, Principal of Gauhati Commerce College, Guwahati to K.C. Das Commerce College, Guwahati with the observation that the Respondent No.4 shall move first.
3. The said order of the DHE, Assam under order No. G(B)Misc./121/2013/Pt./98 dated 09.10.2015 is under challenge in this petition.
4. Brief facts of the case is that the petitioner, while serving as a Lecturer of Gargaon College since 20.09.1995, in pursuance of an advertisement and selection, was appointed as Principal of K.C. Das Commerce College, Guwahati with effect from 31.10.2012.
5. During the tenure of the respondent No. 4 as Principal of Gauhati Commerce College, Guwahati (hereinafter referred as GCCG), on 02.06.2014 an untoward incident occurred in the office chamber of the respondent No. 4, between him and some teaching staff of the said college, which was widely telecast in different news channels of the State and also published in the local dailies
6. With regard to the said incident of 02.06.2014 in GCCG, the State Government in the Higher Education Department made an independent preliminary inquiry through its Joint Secretary in the Higher Education Department. The Directorate of Higher Education also made an inquiry from its side. After going through the reports of said inquiries, the Commissioner and Secretary, Higher Education Department, Assam by its letter No. AHE.29/2014/126 dated 19.06.2014 directed the DHE, Assam to initiate departmental proceedings and charge sheet the erring teaching staff and the Principal (Respondent No.4) of said college, involved in the commotion, based on the findings of the enquiry reports; to take appropriate action by transferring the Respondent No. 4 to another college and also to place the erring teaching staff of said GCCG, involved in the said incident, under suspension. Accordingly, the DHE, Assam, by his letter dated 20.06.2014 informed the Governing Body of GCCG that for the said incident of 02.06.2014, the State Government in the Higher Education Department have advised for transfer of the Respondent No. 4 from the post of Principal of the said College to any other College.
7. Being aggrieved with the said decision of the Government in the Higher Education Department and the letter of the DHE, Assam dated 20.06.2014; the Respondent No.4, approached this Court in W.P.(C) No. 3360 of 2014 challenging the same. Initially, on 27.06.2014, in said W.P.(C) No. 3360/2014, the Court passed an order directing the official respondents therein, not to pass any consequential order of transfer of the Respondent No.4 pursuant to the said communication of the DHE, Assam dated 20.06.2014.
8. But in the meanwhile, in terms of the Government s (Higher Education Department) letter No. AHE.29/2014/136 dated 26.06.2014 and in the public interest, the DHE, Assam by his order No. G(B)Misc.121/2013/283 dated 27.06.2014 transferred the Respondent No.4 from GCCG as per the provisions of Section 3(c) of the Assam College Employees Provincialisation Act, 2005 as amended on 2012 and posted him as Principal of K.C. Das Commerce College, Guwahati (hereinafter referred as KCDCCG) vice the petitioner, with the observation the service condition of respondent No. 4 as option holder under the Assam Non-Government College Management Rules, 2001 as amended on 2009 will remain the same, without prejudice to the service condition.
9. On the same date, vide order No. G(B) Misc.121/2013/284 dated 27.06.2014 the DHE, Assam, in the interest of public service transferred the petitioner and posted him as Principal of GCCG, transferring Respondent No. 4 to KCDCCG, with the direction that the petitioner will move first.
10. It is to be mentioned that in said W.P.(C) No.3360/2014 preferred by the respondent No.4, the present petitioner was not made a party and on the prayer of the Respondent No.4, the Court on 09.09.2014 allowed him to withdraw his said W.P.(C) No.3360 of 2014, with liberty to file a fresh case.
11. In view of such withdrawal of W.P.(C) No.3360/2014 on 09.09.2014, the DHE, Assam vide his communication No. G(B). Misc./212/2013/393 dated 04.09.2014 directed both the petitioner as well as the Respondent No.4 to execute the said transfer orders No. G(B) Misc.121/ 2013/283-284 dated 27.06.2014 issued by him, within a period of three days. Accordingly, the petitioner on 15.09.2015 joined as Principal of Gauhati Commerce College at Guwahati after his release by the authorities of the K.C. Das Commerce College and since then the petitioner is serving in the said GCCG as its Principal. In the meanwhile, the Respondent No.4 have also joined the said K.C. Das Commerce College, Guwahati as its Principal executing the transfer order dated 27.06.2014 issued by the DHE, Assam.
12. On being transferred again by the impugned order dated 09.10.2015 to said K.C. Das Commerce College, Guwahati as its Principal, within a period of 13 months from the date of his joining as Principal of Gauhati Commerce College, Guwahati, in terms of the earlier transfer order dated 27.06.2014 and the communication dated 04.09.2014, noted above and being aggrieved with such action of the state respondents, the petitioner has preferred this petition.
13. Mr. A. Barbora, learned senior counsel on behalf of the petitioner contended that the impugned transfer order dated 09.10.2015 is illegal as the petitioner has been transferred within a period of 13 months in contravention to the Office Memorandum No. ABP.40/91/117 dated 09.09.1992 of the State Government in the Department of Personnel which provides that the transferable officers and staff should be transferred upon completion of 3 years of service at one place, which has been reaffirmed by the State Government in its subsequent Office Memorandum Nos. ABP. 116/2001/4 dated 04.02.2002 and ABP. 116/2001/29 dated 12.11.2009 stressing that all the authorities concerned should strictly comply with the instructions and guidelines set forth in the said O.M. dated 09.09.1992.
14. Mr. Barbora also submitted that the impugned transfer order has been issued when there is a complete ban on transfer of the officials and teachers of the Education Department including Higher Education Department up to 15th December, 2015 in terms of the Government communication No. AEE.482/2015/5 dated 24.07.2015, which clearly stipulates that departmental authorities shall not process transfer proposals before 15.12.2015 except in special cases as decided by the State Government and in Court related matters.
15. It is also submitted on behalf of the petitioner that the present Education Minister, before assuming the said portfolio, was a member of the Governing Body of the Gauhati Commerce College for a long period, while the respondent No.4 was the Secretary of the said Body being the Principal of the College and owing to his said proximity, the respondent No.4 has obtained the impugned transfer order in his favour, which has been issued, only to accommodate him in place of the petitioner and not in any administrative exigencies and/or public interest and therefore, the impugned transfer order being in mala-fide should be set aside and quashed.
16. Mr. Barbora placed that in the preliminary inquiry with regard to the above noted incident of 02.06.2014 in Gauhati Commerce College, there are specific findings against the respondent No. 4, on the basis of which the State Government in the Higher Education Department directed the DHE, Assam to transfer him from GCCG and also to charge sheet him. It is also contended that on coming to know that a full-fledged enquiry has been proposed against him, the respondent No. 4, with the intention and to subvert such enquiry, tried his best to get himself back as Principal of GCCG, where he was involved in various financial irregularities, while serving as its Principal during the period from 2005 to 2014. Mr. Barbora also stated that a two members committee in its report dated 10.09.2015 found respondent No. 4 s involvement in various irregularities while he was the Principal of GCCG and the Governing Body of said College on 11.09.2015 by accepting the said report, resolved and sought for permission from the State Government in the Higher Education Department to initiate an inquiry and departmental proceeding against the respondent No. 4 under the provisions of the Disciplinary and Appeal Rules.
17. Mr. Barbora also stated that knowing the aforesaid facts, the respondent No. 4 submitted a representation before the DHE, Assam on 26.02.2015 and by exerting all his political influences managed to obtain the impugned transfer order dated 09.10.2015 for his accommodation in the GCCG at the particular initiative of the Education Minister of the State.
18. Mr. M.K. Choudhury, learned senior Counsel, appearing on behalf of the respondent No. 4 submitted that the said respondent is not a Government employee as defined under the Assam College Employees (Provincialisation) Act, 2005 as amended and the Rules framed under it, since he did not opt for the same and as such, he is an employee under the Assam Non-Government College Management Rules, 2001, as amended. It is submitted that the respondent No. 4, not being a Government Employee under said 2005 Act, he could not have been transferred to other College. Mr. Choudhury also submitted that by the impugned transfer order dated 09.10.2015, the official respondents have rightly brought back the respondent No. 4 to his original College, the Gauhati Commerce College as its Principal, by rectifying the mistake which they committed on earlier occasion by transferring him from GCCG to KCDCG by the earlier transfer order dated 27.06.2014. It is submitted that as he was given an assurance that he shall be brought back soon, after the situation in his said college is eased out, the respondent No. 4 on 09.09.2014 withdrew W.P.(C) No.3360/2014 that he preferred earlier.
19. Mr. Choudhury also submitted that no prejudice has been caused to the petitioner by the impugned transfer order dated 09.10.2015 by transferring him from GCCG to KCDCCG as he did not challenge his earlier transfer order dated 27.06.2014 from KCDCCG to GCCG, which was issued within 20 months from his joining as Principal in said KCDCCG on 31.10.2012. Mr. Choudhury, further submitted that the impugned transfer order dated 09.10.2015 have been issued by the official respondents only as a corrective measure of its earlier order dated 27.06.2014, as such the impugned transfer order is not at all arbitrary and illegal. Further, with regard to mala-fide, Mr. Choudhury submitted that the present Education Minister was a member of the Governing Body of said GCCG, while the respondent No. 4 was its Principal and having personal knowledge about the past incidents of the college, he as a Departmental Minster has approved the transfer of the respondent No. 4 to his previous College. Mr. Choudhury placed before the Court that that though the petitioner has alleged mala-fide against the present Education Minister, but he has not been made a party respondent in the present proceeding and that the petitioner has failed to prove any mala-fide with regard to the issuance of the impugned transfer order.
20. Mr. M. Choudhury, learned Senior Standing Counsel for Higher Education Department, appearing on behalf of the official respondent Nos. 1 and 2, submitted from the records that after the earlier transfer order of the respondent No.4 dated 26.06.2014 was given effect, his wife, on 02.01.2015 submitted a representation before the Chief Minister of the State, which was received by C.M s office on 06.01.2015. In her said representation, respondent No. 4 s wife submitted that she is suffering from breast cancer since 2005 and needs constant care, for which her husband did not opt for provincialisation, so that he is not transferred and the teachers involved in the case of the college, who were suspended, have already been reinstated in service and as such her husband should be transferred back to GCCG, so that he could complete his service period, where he already served for 26 years, which would go a long way to maintain her mental and physical health. Mr. Choudhury stated that the Chief Minister of the State accordingly on 06.01.2015 forwarded her said representation to the Commissioner, Higher Education Department to look into it.
21. Mr. Choudhury, Sr. Standing counsel for Higher Education Department also submitted that the impugned transfer of the respondent No. 4 has been issued after the matter was departmentally processed. He also stated that prior to the issuance of the impugned transfer order dated 09.10.2015, the departmental proceeding against the five erring teaching staff of GCCG, with regard to their involvement in the untoward incident of 02.06.2014, was completed, wherein two of them have been punished with stopping of one increment with cumulative effect and Censure for the other three. It is stated by the standing counsel that the impugned transfer order has been issued after necessary approval of the Departmental Minister and the Chief Minister of the State and that no prejudice has been caused to the petitioner as both the Colleges involved in the case are within the City of Guwahati itself. On being enquired, Mr. Choudhury submitted that both GCCG and KCDCCG are provincialised colleges under the Assam College Employees (Provincialisation) Act, 2005 and the Rules framed under it. Mr. Choudhury placed his reliance on a judgment of Division Bench of this Hon ble Court reported in 2003 (1) GLT 530.
22. Mr. Barbora, learned senior counsel on behalf the petitioner, in his reply to the submission of the respondents stated that as per sub-section (c) to Section 3 of the Assam College Employees (Provincialisation) Act, 2005 all principals of provincialised colleges constitutes an independent common cadre and that the services of the principals are transferable among the colleges. According to Mr. Barbora, senior counsel, respondent No. 4 can be transferred in spite of his giving option to remain in the earlier terms, before provincialisation came in to force.
23. Mr. Barbora further submitted that transfer is a two way process, and the impugned transfer order has been issued only to accommodate the respondent No. 4 and not for any public exigencies and therefore, the impugned transfer order dated 09.10.2015 should be set aside and quashed.
24. Perused the records of Higher Education Department, involved in this case, submitted by Mr. Choudhury, learned senior standing counsel and also considered the Judgment cited by him.
25. Respondent No. 4 earlier preferred a writ petition being W.P.(C) No. 3360 of 2014 challenging his transfer order dated 27.06.2014 to KCDCCG that was issued by the DHE, Assam, which he withdrew on 09.09.2014 with liberty to file afresh. After joining KCDCG in terms of said transfer order 27.06.2014, on 26.02.2015 (Annexure-I to the petition) the respondent No. 4 made a representation before the DHE, Assam for revocation of said transfer order dated 27.06.2014, by which he was transferred from GCCG to KCDCCG, though it was already given effect.
26. Section 3(c) of the Assam College Employees (Provincialisation) Act, 2005 provides that all Principals of provincialised colleges of the State shall form an independent common cadre and that services of the Principals are transferable among the colleges. Section 2(a) of the said 2005 Act, defines College and it means any Non-Government College in Assam in receipt of deficit grants-in-aid from Government and imparting general education in Arts, Commerce or Science stream in Graduate level. After amendment of the Assam Non-Government College Management Rules, 2001 with effect from 18.06.2009; the said 2001 Rules is known as the Assam Provincialised Colleges and the Assam Non-Government College Management Rules, 2001 and after such amendment, Rule 2(a) of said 2001 Rules defines College as a Assam Provincialised Colleges and Non-Government College.
27. It is a settled position of law that transfer which is an incident of service is not to be interfered with by the Court unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any professed norm or principle governing the transfer. The transfer of a public servant made on administrative grounds and/or exigencies and/or in public interest should not be interfered with, unless there are strong and compelling grounds rendering the transfer order improper and unjustifiable. It is also settled that a government servant is liable to be transferred to a similar post in the same cadre which is a normal feature and incidence of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified non-transferable post. It is needless to emphasise that a government employee or any servant of a Public Undertaking has no legal right to insist on being posted at any particular place.
28. The Hon ble Supreme Court in the case of State of Rajasthan -Vs- Anand Prakash Solanki, reported in (2003) 7 SCC 403, have observed that
The broader concept of transfer is a change of the place of employment within an organization. Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out. The power, like all other administrative powers, has to be exercised bona fide.
29. In the case of Rajendra Singh -Vs- State of U.P., reported in (2009) 15 SCC 178, the Hon ble Supreme Court has observed as follows:
8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires.
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar [1991 Supp (2) SCC 659] this Court held:
4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.
10. In N.K. Singh v. Union of India [(1994) 6 SCC 98] this Court reiterated that:
6. the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision .
30. In the case of Union of India -Vs- S.L. Abbas, reported in (1993) 4 SCC 357, have observed that Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. The order of transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.
31. The Hon ble Apex Court in the case of K.B. Shukla -Vs- Union of India, reported in (1979) 4 SCC 673 with regard to exigencies of the Service have observed that -
It is true that formation of opinion by the Central Government as to the existence of exigencies of the Service requiring appointment by such method, is a prerequisite for the exercise of the power. But the formation of such opinion is a matter which, in view of the peculiar nature of the function and the language of the provision, has primarily been left to the subjective satisfaction of the government. Indeed, it is as it ought to be. The responsibility for good administration is that of the government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the government alone is best suited to judge as to the existence of exigencies of such a Service, requiring appointments by transfer. The term exigency being understood in its widest and pragmatic sense as a rule, the Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by mala fides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation.
32. With regard to mala-fide, the Hon ble Supreme Court in the case of State of Punjab -Vs- Gurdial Singh, reported in (1980) 2 SCC 471 have held as follows:
The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power -sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: I repeat . . . that all power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist . Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act.
33. In Sarvesh Kumar Awasthi -Vs- U.P. Jal Nigam, reported in (2003) 11 SCC 740, Hon ble Supreme Court have observed that In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.
34. From the settled principle of law it is clear that the Court in exercising its power of judicial review shall not interfere with a transfer order unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any professed norm or principle governing the transfer. Further, to be malafide, there should be sufficient materials from which a reasonable inference of malice in fact for passing the order can be drawn.
35. In the present case, the transfer order has not affected petitioner s service conditions and pay and other benefits attached to the post of Principal of KCDCCG or that of GCCG, which was held by him. But, from the relevant records placed by the departmental counsel, it is seen that impugned transfer of the respondent No. 4 has been initiated by the Minister of the Department vide his orders under No. ME and PPG/21/2015/24 dated 24.04.2015 and No. ME and PPG/18/2015/38 dated 03.05.2015 with a specific direction to the authorities of the Higher Education Department to transfer the respondent No. 4 from K.C. Das Commerce College, Gauhati to Gauhati Commerce College, Gauhati vice transferring the petitioner and vice versa. The record also reveals that the Government in the Higher Education Department by its communication No. AHE.42/2015/7 dated 08.10.2015 informed the Director of Higher Education, Assam that Government in the Higher Education Department in the interest of public service and in pursuance of the letters referred in the same, have decided to transfer the respondent No. 4, Principal of KCDCG to GCCG and the petitioner, Principal of GCCG to KCDCCG in same capacity with immediate effect and requested the DHE, Assam to take action accordingly, allowing respondent No. 4 to move first. Pursuant to the same, the DHE, Assam issued the impugned transfer order on 09.10.2015.
36. From the said communication No. AHE.42/2015/7 dated 08.10.2015, it is seen that it has the reference of (i) No. AHE.29/2014/136 dated 26.06.2014, i.e. the Annexure-A to the present petition, by which Government earlier directed the DHE, Assam to transfer the respondent No. 4 from the post of Principal of GCCG to the post of Principal in KCDCCG because of the enquiry reports with regard to the incident of 02.06.2014 in GCCG and (ii) No. ME and PPG/21/2015/24 dated 24.04.2015 and (iii) No. ME and PPG/18/2015/38 dated 03.05.2015, i.e. the orders of the Departmental Minister, referred above; by which the authorities in the Department were directed to transfer the respondent No. 4 from KCDCCG to GCCG in place of the petitioner and vice versa. But the records do not disclose any reasons for issuance of said two orders dated 24.04.2015 and 03.05.2015 by the Departmental Minister or in issuing the communication No. AHE.42/2015/7 dated 08.10.2015 of the Government in the Higher Education Department or in issuing the impugned transfer order dated 09.10.2015 of the DHE, Assam for transferring the petitioner except to accommodate the respondent No. 4 in place of the petitioner.
37. From the materials available before the Court, the only conclusion that can be drawn is that the Departmental Minister imposed his opinion on the Commissioner and Secretary of Higher Education Department of the State and the Director of Higher Education, Assam to transfer of the respondent No. 4 from the post of Principal of KCDCCG to the post of Principal of GCCG. The power exercisable by the Commissioner and Secretary of Higher Education Department and the Director of Higher Education, Assam under the provisions of the Assam College Employees (Provincialisation) Act, 2005, the Assam College Employees (Provincialisation) Rules, 2010 as well as the Assam Non-Government College Management Rules, 2001 are statutory power and they alone can exercise that power. While exercising such powers, the Commissioner and Secretary and the Director cannot, as the case may be, relinquish their responsibility in favour of anyone including the Chief Minister of the State or the Departmental Minister, except to obtain necessary approval, if so required, as per the professed norm or principle governing the transfer or administrative guidelines. It is definitely not proper for the Departmental Minister to have interfered with the functions of the Commissioner and Secretary and the Director. In this case the independent power of the Commissioner and Secretary and the Director has been exercised by the Departmental Minister, an authority not recognised by said 2005 Act, 2010 Rules and also the 2001 Rules; but the responsibility for making the impugned transfer order dated 09.10.2015 was shown to be taken by the Commissioner and Secretary and the Director of Higher Education of the Department concerned. The Departmental Minister is not legally justified in assuming the jurisdiction that has been conferred on the Commissioner and Secretary and the Director of the Department involved in the case.
38. It is a settled law that the executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy; but the same will not absolve them from their duty to exercise their own discretion in individual cases, in accordance with law and the rules in force unless explicit statutory provision has been made for them to be given binding instructions by a superior. From records of the case, it is seen that both the communication dated 08.10.2015 of the Government in the Higher Education Department and the impugned transfer order dated 09.10.2015 are not made for professed purpose i.e. in normal course and/or in public or administrative interest and/or in the exigencies of service, but for other purpose, i.e. only to accommodate the respondent No. 4 for undisclosed reasons.
39. For the reasons noted hereinabove, the Court finds that said communication dated 08.10.2015 of the Government in the Higher Education Department and the impugned transfer order dated 09.10.2015 are arbitrary, illegal, vitiated by malafide and not on any administrative grounds or in public interest or in public exigencies and as such are liable to be set aside.
40. In view of the above, the communication No. AHE.42/2015/7 dated 08.10.2015 of the Government of Assam in the Higher Education Department and the consequential impugned transfer order No. G(B)Misc./121/2013/Pt./98 dated 09.10.2015 of the Director of Higher Education, Assam are hereby set aside and quashed.
41. Accordingly, this writ petition stands allowed. No order as to costs.