Introduction
Mutual transfer allows two government employees to exchange their places of posting, usually on their own request and with the approval of the department. Departments often regulate this through executive instructions, and one common condition is that both employees must be covered by the same service rules. In The Director of Animal Husbandry and Veterinary Department, Assam v. Mustafizur Rahman & Anr., a Division Bench of the Gauhati High Court comprising Justice Michael Zothankhuma and Justice Anjan Moni Kalita, by order dated 8 September 2026, dealt with the cancellation of a mutual transfer on the ground that the two employees were governed by different service rules. The Bench examined the rules themselves, found that both employees were covered by the same set of rules, and upheld the mutual transfer.
Factual Background
The respondents, Mustafizur Rahman and Moushumi Kalita, were Junior Assistants in the Animal Husbandry and Veterinary Department (“AH&V Department”), Assam. They were selected through a process based on the same advertisement and were appointed on 1 June 2023 by the Directorate of the AH&V Department, in the same Grade Pay. Respondent No. 1 was posted as Junior Assistant in the Directorate, while respondent No. 2 was posted as Junior Assistant in the District Office of the Department.
The respondents applied for mutual transfer under an Office Memorandum dated 1 January 2025 (“O.M.”), which permits mutual transfer of employees if they are covered under the same service rules. The Government Department approved the request, and a consequential mutual transfer order was passed on 7 June 2025. However, on 12 July 2025, the Department cancelled the order on the ground that the respondents were governed by two different sets of service rules. According to the Department, respondent No. 1 was governed by the Assam Directorate Establishment (Ministerial) Service Rules, 1973 (“1973 Rules”), while respondent No. 2 was governed by the Assam District Establishment (Ministerial) Service Rules, 1967 (“1967 Rules”).
The respondents challenged the cancellation by filing WP(C) No. 4350/2025. By judgment dated 10 December 2025, the learned Single Judge held that the Director had misinterpreted Clause 3(point-b) of the O.M. in treating the mutual transfer as contrary to it. The cancellation order was set aside as illegal, and the mutual transfer order dated 7 June 2025 stood revived. The State then filed the present writ appeal.
Contentions Before the Court
Mr. J. K. Goswami, learned counsel, appeared for the appellant State. The State’s case, as recorded in the order, was the same as the ground in the cancellation order: since the respondents were governed by different service rules, there could be no mutual transfer without contravening the O.M. dated 1 January 2025. Mr. M. Dutta, learned Senior Counsel, assisted by Mr. L. Deka, appeared for the respondents and submitted that there was no infirmity in the transfer order or in the decision of the Single Judge.
Which Service Rules Govern the Respondents?
The Division Bench began by noting that the O.M. permits mutual transfer of employees if they are covered under the same service rules, so the question was whether the respondents were governed by the 1967 Rules, the 1973 Rules, or both. The Court first looked at the 1967 Rules. Rule 2(b) provides that the Deputy Commissioner is the appointing authority for ministerial posts in the District Establishment, and Rule 2(4) defines the District Establishment to cover non-gazetted ministerial staff in the offices of the Deputy Commissioner, Sub-Divisional Officers and Sub-Deputy Collectors of the district.
The Note to Rule 2(4) lists branches such as Supply, Textile, Election, Revenue and Development, among others, and the Court observed that the AH&V Department or its branches or wings find no mention in the offices of the Deputy Commissioner or Sub-Divisional Officer. The 1967 Rules, in the Court’s view, regulate recruitment and service conditions of persons appointed to the Assam Ministerial District Establishment Service, with the Deputy Commissioner as appointing authority.
In contrast, both respondents were appointed by the Director of the AH&V Department to posts in the Directorate and the District Office of that Department. The Court then examined the 1973 Rules. Rule 2 makes the Heads of Department listed in Schedule I the appointing authority, and Serial No. 13 of Schedule I names the Director of the AH&V Department as the appointing authority for the posts of Senior and Junior Assistant. Rule 2(c) includes within “District Offices” the district offices of District Officers and other offices declared as such under the controlling authority of the officer, and Rule 1(2) applies the 1973 Rules to the ministerial staff of the offices of the Heads of Departments listed in Schedule I. On this basis, the Court held that the Director was the appointing authority for the respondents, because the posts belonged to the AH&V Department, and that both respondents were covered by the 1973 Rules.
The State’s Own Affidavit and Disposal of the Appeal
The Bench also drew attention to an additional affidavit filed by the Director of the AH&V Department on 27 August 2026. In paragraph 3 of that affidavit, the Director stated that no specific service rules govern the service conditions of respondent No. 2. The Court observed that the appellant did not appear to be sure what stand to take, in light of the clear provisions of the rules.
Accordingly, the Court found no reason to hold that respondent No. 2 was governed by the 1967 Rules, and no reason to interfere with the Single Judge’s decision. The writ appeal was dismissed, which leaves the Single Judge’s judgment and the revived mutual transfer order dated 7 June 2025 in place.
AMLEGALS Remarks
The decision shows that where a transfer policy allows mutual transfer only between employees covered by the same service rules, the outcome in a dispute depends on what the rules actually provide, and not on the cadre, designation or the office in which the employees are working. On the Court’s reasoning, a posting in a district office does not by itself bring an employee under the district establishment rules. The Court looked at the appointing authority, the definitions and the schedules of each set of rules, and the department that made the appointment was a decisive factor. Employees applying for mutual transfer would be well advised to confirm, before applying, which rules govern their appointment and service conditions, and to keep the appointment orders on record.
For departments, the ruling is a reminder to examine the applicable rules before cancelling a mutual transfer that has already been approved and implemented through a formal order, and to take a consistent position in court. In this case, the Court noted that the Director’s own affidavit stated that no specific rules govern one of the respondents, and observed that the State did not appear sure of its stand. As the decision turns on the particular rules and the facts before the Court, parties in similar situations should examine their own service rules and the terms of the relevant transfer policy.
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