WP(C) 5033/2007 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY In challenge is the notification No. B(2)H.429/94/245 dated 6/6/ 2007 of the Additional Secretary to the Government of Assam, Education (H) Depar tment, transferring the respondent No. 6, a Lecturer in Sanskrit, Nyaya Darshan of K.K. Handique Government Sanskrit College, Jalukbari (hereafter referred to a s the College) to the Cotton College, Guwahati, the judgment and order dated 5/9 /2007 passed by the learned Assam Administrative Tribunal in Appeal Case No. 36 ATA/2007 as well as the communication dated 7/7/2007 of the Secretary to the Gov ernment of Assam, Education (H) Department requiring the respondent No. 4 to rel ease the respondent No. 6 pursuant to the aforementioned notification dated 6/6/ 2007. 2. I have heard Mr. K.K. Mahanta, Sr. Advocate for the petitioner, Mr. M.R. Pathak, learned Standing Counsel, Education Department for the State re spondents, Ms. B. Choudhury, Advocate for the respondent No. 4 and Mr. P.C. Deka , Sr. Advocate assisted by Mr. N. Deka, Advocate for the respondent No. 6. 3. The pleaded versions of the parties in short are unavoidable. Th e petitioner has introduced himself to be the General Secretary of the Students Union of the College having been elected to the said office for the academic yea r 2006-07 and has thus contended that being the representative of the said stude nt Body has the locus standi to file the writ petition. By an additional affidav it, the petitioner has brought on record a resolution taken by the aforementione d Body authorizing him to pursue this proceeding in the capacity of the Advisor thereof. Admittedly the petitioner meanwhile has demitted the office of the Gene ral Secretary of the Students Union on the expiry of his term. The petitioner ha s averred that the College imparts education exclusively in Sanskrit offering fo ur major subjects in Kavya, Nyaya, Veda and Vedanta besides other related facult ies. It has been averred that for the academic year 2006-07, four students opted for Nyaya major out of whom one student having failed in the first year, the re maining three are prosecuting their studies in the said discipline. The petition er has stated that the respondent No. 6, a Lecturer who is entrusted to take cla sses in Nyaya major in the College being irregular, the students suffered seriou sly. As all the departments of the College including Nyaya-Darshana is manned by a solitary Lecturer absence or non-attendance of the teacher implies practical break down of the faculty. 4. The students of Nyaya having approached the Principal of the Col lege, they were intimated that by the order dated 6/6/2007 of the Director of Hi gher Education, Assam, the respondent No. 6 has been transferred to the Cotton C ollege and that she (Principal) had in the meantime submitted a representation b efore the Commissioner and Secretary to the Government of Assam, Education (H) D epartment requesting him to make alternative arrangements before insisting on th e release of the said respondent pursuant to her transfer. According to the peti tioner, the students waited in expectation but in vain. 5. In the meantime the respondent No. 6 approached the Assam Admini strative Tribunal (hereafter referred to as the Tribunal) assailing the letter d ated 8/6/2007 of the Principal to the Commissioner and Secretary to the Governme nt of Assam referred to hereinabove. The learned Tribunal by its judgment and or der dated 6/9/2007 allowed the appeal of the respondent No. 6 with the observati on that the respondent No. 4 had no alternative but to abide by the direction co ntained in the letter dated 7/7/2007 for release of the respondent No. 6. The ag grieved students thereafter, according to the petitioner, submitted a written re presentation before the Commissioner and Secretary of the Education (Higher) Dep artment, Government of Assam for his intervention for ameliorating of their dist ress. In view of the prevailing stalemate, the writ jurisdiction of this Court h as been invoked. The impugned order of transfer and the decision of the learned Tribunal has been impeached to be unfair, unjust and discriminatory. The petitio ner by an additional affidavit filed on 20/2/2008 has also questioned the impugn ed order of transfer to be violative of the transfer guidelines pertaining to Go vernment officials. 6. The State respondents in their affidavit while endorsing the tra nsfer of the respondent No. 6 to be valid has challenge the maintainability of t he petition on the ground of want of locus standi of the petitioner. They have d isclosed in their affidavit the steps taken by the Government in filling up the vacancies amongst others in the post of Lecturers in Sanskrit in different Gover nment Colleges and that the Assam Public Service Commission (hereafter referred to as the Commission) has in the meantime published an advertisement on 24/1/200 8 and that its recommendation for appointments is awaited. The answering respond ents further maintained that the Education Department in order to ensure that th e students of the College did not suffer required the respondent No. 6 on 15/9/2 007 to submit an undertaking to take two classes in a week in response whereto s he made a declaration agreeing to the arrangement after she was released from th e College. The Principal of the Cotton College to which the respondent No. 6 has been transferred also in writing conveyed that there was no objection to the pr oposed arrangement. The respondents pleaded the Government’s prerogative in tran sferring its employees and insisted that the order of transfer was valid. 7. The respondent No. 4, the Principal of the College in her affida vit has in essence contended that the respondent No. 6 was not interested in tak ing up classes therein and because of her indifference and non-cooperation, the students are suffering. She has, however, expressed her reservation against the unilateral transfer of the respondent No. 6, the sole Lecturer in Nyaya Darshana in the midst of an academic session without providing for a substitute in her p lace. The respondent, however, has admitted that till date, the respondent No. 6 has not been released from the College. The answering respondent, however, clar ified that there has not been any resistance from her side to prevent the respon dent No. 6 from attending her duties in the Cotton College. She has further indi cated about some agitation by the students in the College demanding filling up o f vacant posts of teachers and against the transfer of the respondent No. 6 for which she is under heavy pressure. 8. The respondent No. 6 while assailing the maintainability of the writ petition has contended that her transfer was legally valid being an inciden ce of service. According to her, the College is equipped with 7 teachers in Sans krit compared to three teachers in Cotton College. She has insisted that the ord er of transfer is in public interest bearing in mind the relatively greater exig encies in the Cotton College where the number of students is much higher than th ose in the K.K. Handique Government Sanskrit College. She also affirmed her unde rtaking dated 17/9/2007 to the Government expressing her consent to take two cla sses in the College after being released to join the Cotton College. She has rei terated that she has not yet been released from the College inspite of the above arrangement and the instructions issued by the concerned authorities of the Dep artment. 9. This Court by order dated 12/10/2007 while issuing notice and ha ving been apprised of the aforementioned undertaking of the respondent No. 6 obs erved that pending return of the notice and submissions of the affidavits by the respondents, the proposed arrangement without prejudice to the rights and conte ntions of the parties be acted upon till the returnable date. This Court thereby desired to strike a balance between competing interests of the students of both the institutions pending final adjudication of the issues. The respondent No. 6 was left at liberty to take more classes if permitted by the authorities of the Cotton College during the interregnum. 10. The rival pleaded contentions of the parties bearing on the rele ase of the respondent No. 6 and the non-implementation of the arrangement as abo ve have to be viewed in this background. The respondent No. 4 incidentally has a lso taken a stand that the arrangement approved by this Court was effective till 14/11/2007 only and it was not extended thereafter. Logically this assertion is by way of a defence to the asseveration of deliberate non-compliance of the dir ections contained in the order dated 12/10/2007. 11. The learned Standing Counsel, Education Department, and the resp ondent No. 6 having raised a preliminary objection with regard to the locus stan di of the petitioner, this Court has considered it expedient to examine the same before the embarking upon the other issues on merit. 12. Mr. Mahanta has urged that the petitioner is before this Court b oth in his individual capacity as well as the General Secretary of the Students Union (hereafter referred to as the Union). As he represents the interest of the student community of the College as a whole, his locus standi to maintain this petition is unquestionable. Further no objection in this regard having been take n by the respondent No. 6 in her affidavits in the proceedings, she is estopped from raising a plea to that effect at this stage. The learned Sr. Counsel urged that the issue of locus standi is to be decided in the facts of each case and th e test of aggrieved party is not absolute. According to Mr. Mahanta, a person ha ving substantial interest in the subject matter may also invoke the writ jurisdi ction of this Court even if no specific right of his is either involved or infri nged. The learned Sr. Counsel contended that having regard to the petitioner’s o ffice he is in the capacity of the trustee representing the interest of the stud ents at large. He maintained that though the petitioner presently is not the Gen eral Secretary of the Union, he having been authorized to continue with the proc eeding on its behalf, the challenge to his locus standi is per se unsustainable. Mr. Mahanta to buttress his arguments placed reliance on the decision of the Ap ex Court in Gadde Venkateswara Rao versus Government of Andhra Pradesh and other s, AIR 1966 SC 828. An extract from the Administrative Law by H.W.R. Wade-5th Ed ition was also relied upon. 13. Mr. Pathak as against this has urged that as no legal or constit utional right of the petitioner has been violated, he as an unconcerned third Pa rty has no standing to assail the transfer of respondent No. 6 and the determina tion made by the learned Tribunal. He contended that as transfer qua the respond ent No. 6 is a condition of service which the department as her employer has the power and prerogative to effect, the same cannot be stultified or annulled at t he instance of someone whose legal right or interest has not been affected there by. 14. Mr. Deka while endorsing the above has contended that absence of any categorical objection to the locus standi of the petitioner by the responde nt No. 6 in her pleadings in the face of a specific contention to the said effec t in the Government’s counter is wholly inconsequential. Emphatically maintainin g that the petitioner lacks the locus standi to maintain the instant petition, t he learned Sr. Counsel insisted that the Respondent No. 6’s order of transfer is valid and passed in public interest and the learned tribunal having sustained t he same after evaluating the comparative inconvenience and hardship of the stude nts of the two Colleges, even on merits, the petition does not deserve to be ent ertained. To reinforce his arguments the learned Sr. Counsel has placed reliance on the decision of the Apex Court in Vinoy Kumar versus State of U.P. and other s, (2001) 4 SCC 734. 15. The rival pleadings more particularly on the aspect of the lis u nder scrutiny as well as the arguments advanced have received the due attention of this Court. To start with, the K.K. Handique Government Sanskrit College is a Government institution Lecturers whereof are in the State service. As such they are governed by the extant rules, executive instructions and administrative gui delines regulating their transfer, which is an essential condition of service. N oticeably there is no allegation of malafide or violation of any statutory rules vis-à-vis the impugned order of transfer dated 6/6/2007. 16. The respondent No. 6 apparently is inclined to comply therewith and had approached the learned Tribunal for the enforcement thereof. The learned Tribunal determined the transfer to be within the dominion of the Government. I t, however, required the respondent State to ensure that the students of the Col lege do not suffer for want of adequate number of Lecturers after the transfer o f the respondent No. 6. The learned Tribunal also granted liberty to the State r espondents to require the respondent No. 6, if the circumstances so demand, to t ake classes atleast two days in a week in the College in addition to her duties in the Cotton College. As the orders of the learned Tribunal reveals, it also to ok note of the students lecturers ratio in both the College in arriving at its f inal decision. The facts demonstrate that the respondent No. 6 being asked had r esponded positively to the arrangement proposed which too had the approval of th e Cotton College. The arrangement, however, has not worked, as she has not been released from the College. 16A. In the writ petition the petitioner though has referred to himse lf as the General Secretary of the Union has not in categorical terms stated tha t the proceeding has been initiated in the said capacity and on behalf of the St udents Body. In the cause title as well the petitioner has neither mentioned his office nor has indicated that it was in his official capacity as the General Se cretary of the Union that he seeks to invoke the writ jurisdiction of this Court . The description provided by him obviously demonstrates that the petition had b een filed by him in his individual capacity. It is not clear either from the wri t petition as to whether the Union is a registered Body. His statement in his ad ditional affidavit claiming to have initiated the instant proceeding in a repres entative capacity as well as the resolution of the Union authorizing him to cont inue the same as its Advisor in the opinion of this Court do not per se endow hi m with the standing as required in law bearing in mind the challenge made and th e issues involved. It has been admitted in course of the arguments that the peti tioner is not a student of Sanskrit in the College and, therefore, in his indivi dual capacity neither any legal or constitutional right of his has been infringe d nor affected by the transfer of respondent No. 6. The averments made in paragr aph 15 of the writ petition and paragraph 1 of the additional affidavit filed by him on 24/6/2008 have also not been appropriately affirmed to unequivocally dem onstrate that he has filed the writ petition as an authorized representative of the Students Body of the College. Significantly none of the students actually af fected, if at all, by the transfer of the respondent No. 6 has individually or c ollectively approached this Court ventilating their grievances. Mr. Mahanta had in course of the arguments referred to an excerpt from the Administrative Law by H.W.R. Wade, 5th Edition page 579, the portion highlighted by him being extract ed hereinbelow. But there are many situations where a person has a special interest without any specific legal right and there has been a tendency for the Courts to grant inju nction on the strength of the special interest 17. The learned Sr. Counsel endevoured to impress upon this Court th at a petition of the present kind is maintainable by a person possessed of a spe cial interest in the issue even in absence of any specific legal right in connec tion therewith. 18. The contextual facts do not project any special interest of the petitioner, to permit an application of the above test in his favour. As alluded hereinabove, the attending facts and circumstances also do not highlight any ap parent default or abuse on the part of the State respondents in passing the impu gned order of transfer so much so to defile a subsisting public policy to render it per se in effectual, null and void. Special interest, if any, can at best be determinable in the students in Kabya Darshana who, as observed hereinabove, ar e not before this Court. Having regard to the nature of the challenge made, the aspect of standing of the petitioner has to be necessarily strictly construed. E xpectedly the respondent State must have made its own assessment in passing the order of transfer. That the student teacher ratio is much higher in Cotton Colle ge is not in dispute. The claim of the State respondents to have initiated a pro cess for filling up amongst others post of Lectures of Sanskrit in the College i s also unrefuted. 19. In Gadde Venkateswara Rao, supra, the appellant who at the relev ant time was the President of the concerned village Panchayat from the territori al jurisdiction of which a primary health center was sought to be shifted had ch allenged the Government order to the said effect as the representative of the vi llage Dharmajigudem under Article 226 of the Constitution of India. The facts re veal that the appellant in the aforementioned capacity had represented the villa ge in all its dealings with the Government officials involved and that he was au thorized to act on behalf of the Committee set up for that purpose. The Apex Cou rt, therefore, construed the Committee to be the trustee of the amount collected from the villagers for public purpose and returned a finding in favour of the a ppellants’ standing as its representative. It was observed in that perspective t hat the petitioner who seeks to file an application under Article 226 of the Con stitution ordinarily should be one who has a personal or individual right in the subject matter of the petition. Their Lordships elucidated that a personal righ t need not be in respect of a proprietary interest but can also relate to an int erest of a trustee. It was propounded that in exceptional cases a person who has been prejudicially affected by an act or an omission of the authority can also file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. It was propounded that a writ petition can also be maint ainable by a person who is prejudicially affected by a decision of an administra tive authority even in absence of his proprietary or fiduciary interest in the s ubject matter involved. Their Lordships, therefore, clearly underscored the nece ssity of a detrimental bearing on one’s interest to maintain a writ petition eve n if thereby no personal right was violated. 20. Their Lordships in Vinoy Kumar, supra, in clear terms ruled that a person would have no locus standi to file a writ petition if he is not person ally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such right s being invaded or his acquired interests violated ignoring the applicable rules . It was held that the relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction, the exception being in cases where the writ applied for is a writ of habeas corpus o r quo warranto or filed in public interest. Their Lordships sounded a note of ca ution observing that the Court should confine the exercise of writ jurisdiction to cases where legal wrong or injuries are caused to a particular person or his fundamental rights are violated and it ought not entertain cases of individual w rong or injury at the instance of third party. It was clarified that even in cas es filed in public interest, the Court can exercise writ jurisdiction at the ins tance of the third party only when it is shown that the legal wrong or legal inj ury is threatened and such person or determined class of persons is, by reason o f poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief. 21. The propositions adumbrated in the above two decisions are not i n conflict and compliment each other. In the facts of the instant case, the inte rest of the petitioner is distantly remote to satisfy the tests noticed hereinab ove. Even assuming that a public interest is sought to be guarded by the instant petition, no reason is forthcoming as to why the students actually prejudiced b y the transfer of the respondent No. 6 are not in a position to approach this Co urt, they having at the earlier point of time represented before the Government in this regard. The instant petition evidently has not been presented as a publi c interest litigation. The interest of the Union representing itself to be the r epresentative body of the students to espouse the cause of those actually affect ed in the opinion of this court is too distantly remote to confer the required s tanding in the petitioner to maintain this petition. In the interest of administ rative discipline and systemic orderliness as well such an endeavour does not fi nd favour with the Court in the exercise of its extra ordinary jurisdiction. In the above view of the matter, I am constrained to hold that t he plea of want of locus standi of the petitioner has considerable substance and is hereby sustained. In the result the petition is not maintainable in law and is dismissed. No costs.