WP(C) 1151/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY The Challenges witnessed by the two writ proceedings, being WP(C) No.5436/2008 a nd WP(C) No.1151/2009, relate to two successive orders of transfer involving the writ petitioners therein. Whereas, by the notification dated 11.12.2008 of the Deputy Secretary, Government of Assam, Education (E) Department, the petitioner in WP(C) No.5436/2008, was transferred as Inspecting Auditor in the Office of t he District Elementary Education Officer, Goalpara vice the petitioner in WP(C) No. 1151/2009 (for short hereafter referred to as the respondent) transferred in the same capacity in the Office of the District Elementary Education Officer, N agaon, by the order dated 27.02.2009, impugned in WP(C) No.1151/2009, the respon dent aforementioned has been transferred to Sonitpur, Tezpur in the Office of th e District Elementary Education Officer thereat and the petitioner has been soug ht to be retained at Nagaon. This Court, while responding to the challenge made by the petitioner to the orde r dated 11.12.2008, on 22.12.2008, in the interim, directed maintenance of statu s quo with regard to the respective places of posting of the parties. On an app lication made by the respondent for alteration and/or modification of the said i nterim order (registered as MC No. 112/2009), this Court by order dated 27.02.20 09 observed as hereunder: - Be that as it may, in view of the above submissions, I find that the respondent No. 5 has already taken charge of office in the transferred post at Nagaon on 1 2.12.2008, although the petitioner has not formally handed over the charge of of fice to respondent No. 5. Be that as it may, It is made clear that as status qu o order has been passed by this Court on 22.12.2008, the developments prior to 2 2.12.2008 will not be covered by the said order of this Court. Incidentally, on the very same date i.e. 27.02.2009, the order of transfer impug ned in WP(C) No.1151/2009 was passed. In the proceeding as well, this Court by order dated 20.03.2009 ordered that status quo with regard to the respondent’s ( writ petitioner therein) place of posting, as on that date, be maintained. In t he above factual background both the petitioner and the respondent on their own understanding of the orders of status quo claim to be continuing as Inspecting A uditor in the office of the District Elementary Education Officer, Nagaon. I have heard Mr. KK Mahanta, Senior Advocate assisted by Mrs. M Kotoki, Advocate for the petitioner, Mr. MK Misra, learned Standing Counsel, Education Departmen t, Assam for the official respondents and Mr. AK Goswami, Senior Advocate for t he respondent. The Secretary to the Government of Assam, Education (E) Department, in his affid avit filed in WP(C) No.5436/2008, in substance has pleaded that after the respon dent had been transferred from the office of the District Elementary Education O fficer, Morigaon vide Memo No.AEE.679/2005/39-B dated 31.10.2008 to Karimganj, h is wife submitted a representation before the departmental minister on 11.11.200 8 for a reconsideration of the arrangement. According to the answering responde nt, the transfer order dated 31.10.2008 was, accordingly modified and the respon dent was posted at Nagaon by transferring out the petitioner to Goalpara. The a ffidavit further indicates that as the respondent was interested to join at Tezp ur in the office of the District Elementary Education Officer, Sonitpur thereat, the order dated 27.02.2009 impugned in WP(C) No. 1151/2009 was passed subsequen tly. The deponent, however, has affirmed that after the order dated 11.12.2008 was passed, the respondent had joined in the office of the District Elementary E ducation Officer, Nagaon on the very same date at about 2.00 p.m. and that the p etitioner was released therefrom on the next date vide order No. A.40/Pt-2/03/72 83-19 dated 12.12.2008. Mr. Mahanta has urged that as would be apparent from the pleadings of the partie s, the petitioner had continued as the Inspecting Auditor in the office of the D istrict Elementary Education Officer, Nagaon by virtue of the fact that he had n ot handed over the charge of the said office to the respondent till the date of the passing of the order of status quo of this Court in WP(C) No. 5436/2008 and he continues as such there till date. According to the learned Senior Counsel, as the order of transfer dated 27.02.2009 has been validly passed posting the re spondent at Sonitpur, Tezpur acting on the request made by his wife to that effe ct, the challenge thereto is wholly untenable in law. He has, therefore, prayed for an appropriate writ and/or direction for a declaration that the petitioner continues as the Inspecting Auditor in the office of the District Elementary Edu cation Offocer, Nagaon and that by virtue thereof, is entitled to all consequent ial service benefits in that capacity. Mr. Goswami, in reply, has argued that as is evident from the order dated 27.02. 2009 passed by this Court in MC No. 112/2009 that the respondent had taken over the charge of the post of the Inspecting Auditor in the office of the District E lementary Education Officer Nagaon on 11.12.2008 itself, the order of status quo passed on 22.12.2008 would obviously consolidate his position thereat and, ther efore, the plea of the petitioner to the contrary is wholly misconceived. Accor ding to the learned Senior counsel, in view of the order of status quo the impug ned order dated 27.02.2009 by no means could have been passed without the prior leave of this Court and that on that count as well, the same is non est in law. Mr. Goswami, has further argued that as the respondent acting on the representa tion of his wife had been transferred from Morigaon to Nagaon, there was no furt her scope to divert him to Tezpur and as this has been done to accommodate the p etitioner at Nagaon on extraneous consideration, the order dated 27.02.2009 is v itiated by gross arbitrariness and favouritism, rendering it inoperative, null a nd void. Mr. Misra, the learned Standing Counsel, has urged that the challenge to the ord er dated 11.12.2008 and the interim orders passed by this Court, notwithstanding , as in the facts and circumstances of the case, the order dated 27.02.2009 tran sferring the respondent to Tezpur had been passed on a compassionate considerati on of the representation of his wife to that effect, his turn around at this bel ated stage is neither bonafide nor tenable in law. As the order dated 27.02.200 9 has been passed on a careful consideration of all relevant aspects, including public interest and administrative exigency, no interference therewith is called for, he urged. According to Mr. Misra, in view of the notifications dated 27.0 2.2009, the challenge to the order dated 11.12.2008 with time has become infruct uous. The rival pleadings and the arguments advanced have been closely scrutinized. T he sequence of events as recited hereinabove, are matters of records. A perusal of the File No. AEE679/2005 produced by the learned Standing Counsel, Education Department pertaining to the orders of transfer impugned before this Court, rev eals that by Notification No.AEE.679/2005/39-A dated 31.10.2008 of the Deputy Se cretary to the Govt. of Assam, Education (E) Department, the respondent had been transferred as Inspecting Auditor from the office of the DEEO, Morigaon to that of his counterpart in Karimganj. A representation was thereafter submitted by his wife on 11.11.2008 before the departmental minister seeking review thereof c iting consequential family problems that would ensue. The said authority made a n endorsement of the body of the representation requiring the Commissioner, Educ ation to modify the said order. Though the note sheets in the file further indi cate about the inclination of the respondent to join in the office of the DEEO, Sonitpur, Tezpur as a follow up of the representation submitted on his behalf by his wife, by the order dated 11.12.2008, he was posted in the same capacity at Nagaon vice the petitioner. The notes dated 06.02.2009 and 20.02.2009 clearly d isclose that the petitioner had not handed over charge of the office of the Insp ecting Auditor, DEEO, Nagaon to the respondent. Incidentally, by the order date d 12.12.2008 of the DEEO, Nagaon, the petitioner was shown to have been released from the establishment of the DEEO, Nagaon consequent upon the joining of the r espondent thereat. This is also evident from the letter of the said authority t o the Commissioner & Secretary, Government of Assam, Education Department dated 29.12.2008. Be that as it may, by the notifications dated 27.02.2009, the respondent was, th ereafter, transferred to the establishment of the DEEO, Sonitpur and the petitio ner was retained at Nagaon. Noticeably, the notification dated 27.02.2009 relat able to the petitioner indicates that the same had been passed in modification o f the earlier one dated 11.12.2008, keeping the same in abeyance until further o rders. The official records, therefore, reveal in essence an observation that the respo ndent had expressed his mind to be transferred to Tezpur in case the notificatio n dated 31.10.2008 detailing him for Karimganj is modified on the basis of the r epresentation submitted by his wife. To this extent, therefore, stand of the of ficial respondents is borne out by the contemporaneous official records. There is no other overwhelming material to the contrary. On a cumulative consideration of the recorded facts with regard to the taking an d handing over charge of the post of Inspecting Auditor in the office of the DEE O, Nagaon and the reason recorded to justify the transfer of the respondent to T ezpur, this Court is of the view that no interference with the notifications dat ed 27.02.2009 is warranted in the facts and circumstances of the case. Evidentl y, as the petitioner by the said order has been retained at Nagaon, his challeng e to the earlier order dated 11.12.2008 has become non est with the efflux of ti me. In view of the conclusion of the concerned departmental authorities that th e petitioner had not at all relevant times handed over the charge of the Inspect ing Auditor, DEEO, Nagaon, the same being one of the consideration for eventual transfer of the respondent to Tezpur, in the opinion of this Court, the State re spondents would attend to the petitioner’s claim for salary and other service en titlements during the interregnum i.e. 11.12.2008 to 27.02.2009. In case the de partmental authorities deem it necessary to hear the parties to resolve this con troversy, which in any case may require a probe into facts, which this Court in the exercise of its writ jurisdiction is not inclined to undertake, they may do so. The impugned notifications of transfer dated 27.02.2009 are hereby sustaine d. In the result, WP(C) No. 5436/2008 is allowed and WP(C) No.1151/2009 is reje cted. It is expected that the respondent authorities would do the needful exped itiously vis-a-vis the petitioner’s claim for salary for the aforementioned peri od. No costs.