IN THE HIGH COURT OF. (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P. (C) No.

Transcription

1 IN THE HIGH COURT OF (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P. (C) No. 1343/2012 Shri Sanjib Saikia, S/o. Late Muhiram Saikia R/o. House No. 12, Kanaklata Saikia Path, Bhetapara, Beltola, Guwahati , P.S. Basistha Dist. Kamrup (M), Assam Petitioner Versus 1) The State of Assam Represented by the Commissioner Govt. of Assam, Water Resources Department, Dispur, Guwahati ) The Secretary to the Govt. of Assam Water Resources Department, Dispur, Guwahati ) The Chief Engineer, Water Resources Department, Govt. of Assam, Chandmari, Guwahati ) Mr. Nazrul Islam Minister of Food, Civil Supplies & Consumer Affairs, Govt. of Assam Dispur, Guwahati ) Ms. Joon Jonali Baruah (MLA) Morigaon Legislative Assembly Constituency, Dispur, Gwahati ) Mr. Bibekananda Dalai MLA, 79 No. Jagiroad Legislative Assembly Constituency (LAC) Morigaon District, presently Residing at Qtr. No. 65, Old MLA W.P.(C) No. 1343/2012 Page 1 of 9

2 Hostel, Dispur, Guwahati ) Shri R.C. Sarma, Secretary To the Govt. of Assam, Water Resources Department, Dispur, Guwahati ) Shri Prabhat Chandra Rabha Assistant Executive Engineer Guwahati East Central WR Sub-Division, Chandmari, Guwahati ) Shri Sidhantha Sarma Assistant Executive Engineer (TC) Assam Brahmaputra Valley Flood Control Board, Chandmari, Guwahati ) Shri Dhiraj Dewan Assistant Executive Engineer (TC) O/o. the Chief Engineer, Quality Control, Water Resources Department, Chandmari Guwahati Respondents BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the petitioner : Mr. B.D. Konwar, Advocate For the respondents: Mr. K.N. Choudhury, Adll. AG Date of hearing and Judgment: JUDGEMENT AND ORDER 1. This writ petition is directed against the order dated (Annexure-17) issued by the Govt. of Assam in the Water Resources Department under the signature of the Secretary by which W.P.(C) No. 1343/2012 Page 2 of 9

3 while the petitioner has been transferred from Jagiroad to Guwahati, the respondent No. 8 has been transferred to Jagiroad from Guwahati. According to the petitioner, the impugned transfer order is the product of malafide exercise of power at the behest of the respondent Nos. 4 to The petitioner on an earlier occasion had approached this court by filing a writ petition being W.P.(C) No. 75/2012 when he was sought to be transferred by an order dated By the said order also the petitioner was transferred to Guwahati from Jagiroad and the respondent No. 8 was transferred to Jagiroad from Guwahati. It will be pertinent to mention here that the grounds urged in this writ petition were also urged in the earlier writ petition towards assailing the transfer order dated The said earlier writ petition was disposed by order dated For a ready reference, the order is quoted below: Heard Mr. B.D. Konwar, the learned counsel appearing for the petitioner. Mr. K.N. Choudhury, the learned Addl. Advocate General represents the State respondents. Mr. D.K. Das, the learned Counsel appears for the respondent No The petitioner is an Assistant Executive Engineer of the Jagiroad Water Resources Sub-Division and he challenges the order dated , whereby the respondent No. 7 is brought to Jagiroad WR Subdivision and the petitioner is transferred to Assam Brahmaputra Valley Flood Control Board, Guwahati. 3. The petitioner was transferred to Morigaon only on and accordingly he contends that it is a case of premature transfer. Since the Government O.M. dated provides that all proposal for premature transfer should be placed for prior approval of the Chief Minister and only on his concurrence, transfer before expiry of normal tenure can be made, W.P.(C) No. 1343/2012 Page 3 of 9

4 the records were called and in the meantime this Court ordered maintenance of status quo. 4. The records are placed for perusal of the Court and it appears therefrom that, specific attention of the Hon ble Chief Minister was not drawn to the fact that the petitioner served at Morigaon only for about 13 months since Therefore while approval was accorded to the proposal for transfer, the Chief Minister was perhaps unaware that proposal was for a premature transfer. 5. Faced with the above situation, Mr. K.N. Choudhury, the learned Addl. Advocate General upon instruction submits that the Government is going to withdraw the impugned transfer order dated (Annexure- P/15). However, he prays that liberty may be given to the State to take appropriate decision in exigencies of service on posting of the petitioner. 6. Bearing in mind the above stand of the State, the transfer order dated cannot now operate against the petitioner and its is declared accordingly. The Authorities are however at liberty, to take a fresh decision in the matter. 4. From the above order dated what is seen is that the specific attention of the Chief Minister of the State was not drawn to the fact that the petitioner had served at Jagiroad only for about 13 months since his posting there on Be it stated here that as per the adopted guidelines of the State Govt., an officer in the normal circumstance is allowed to remain posted in the station for a period of three years. However, he can be transferred even before the said stipulated period of three years with the approval of the Chief Minister of the State. In the instant case, although the approval of the Chief Minister was obtained, but it was noticed by the Court that the specific attention of the Chief Minister was not drawn to the fact that at the time of issuance of the impugned order of transfer the petitioner had served at Jagiroad only for 13 months. W.P.(C) No. 1343/2012 Page 4 of 9

5 5. It is on the above count the learned Sr. Addl. Advocate General, Assam appearing for the State respondents submitted before the Court that the impugned order of transfer would be withdrawn. However, liberty was prayed for to deal with the matter appropriately in the exigencies of service. The said liberty was granted by the Court. It is pursuant to such liberty, the State Govt. has now issued the impugned transfer order dated (Annexure-17). 6. I have heard Mr. B.D. Konwar, learned counsel for the petitioner as well as Mr. K.N. Choudhury, learned Sr. Addl. Advocate General, Assam. I have also heard Mr. D.K. Das, learned counsel appearing for the respondent No The petitioner in support of his plea that the impugned order of transfer has been issued in malafide exercise of power, has referred to the documents annexed to the writ petition as Annexure-5 Colly. According to the petitioner, since he did not yield to the pressure mounted by the local MLA to award the contractual works to the persons of his choice, he has been transferred by the impugned order. The petitioner has also referred to Annexure-7 communication dated addressed to the Chief Minister of the State by the Minster, Food, Civil Supplies and Consumer alongwith the local MLA. By the said communication the transfer of the petitioner was prayed for in greater interest of public service. By Annexure-8 communication dated , the Minister of Food, Civil Supplies and Consumer individually requested the Secretary to the Govt. of Assam in the Water Resources Department to transfer the petitioner from Jagiroad to Guwahati on the ground that he was inefficient in tackling the flood erosion problem in Morigaon District. W.P.(C) No. 1343/2012 Page 5 of 9

6 8. In the earlier writ petition also the petitioner had urged the above grounds seeking interference of this Court in the transfer order dated In the said writ petition the respondents had filed counter affidavit denying the aforesaid allegations made by the petitioner. In the counter affidavit specific averments had been made to the effect that the transfer of the petitioner was initiated in public interest. In this connection, the affidavit also referred to the decision of the Apex Court reported in (2007) 8 SCC 150 (Md. Masood Ahmad vs. State of U.P. and ors.) and another decision of this Court reported in 2003 (1) GLT 530 ( State of Assam vs. Dilip Kr. Das). 9. In the said affidavit it was stated that the petitioner was transferred to Guwahati and in his place the respondent No. 8 was transferred considering the efficiency in handling the works in question. It was stated that there was no arbitrary exercise of power in respect of issuance of the transfer order dated As to what was the order passed by this Court on the basis of the aforesaid pleadings, has been noted above. The order dated by which the writ petition was disposed of, speaks nothing of the malafide exercise of power towards issuance of the earlier transfer order. However, it was noticed that the fact that the petitioner had not completed three years of service at Jagiroad was not brought to the notice of the Chief Minister. It was on that count the impugned transfer order was withdrawn with the liberty to carry out fresh exercise. The said prayer was allowed. 11. After the aforesaid developments, the Secretary, Water Resources Department put up a note to the Minister, Water Resources Department which is available at Annexure-16. By the said note, all the aforesaid facts had been stated and the approval of the W.P.(C) No. 1343/2012 Page 6 of 9

7 Chief Minister was sought for towards issuance of the impugned order of transfer. It appears that the matter was placed before the Chief Minister of the State since his approval was required in view of the fact that the petitioner had not completed three years of service at Jagiroad. On perusal of the same, the Chief Minister accorded his approval towards issuance of the order. It was pursuant to the said exercise, the State Govt. in the Water Resources Department issued the Annexure-17 order dated Mr. Konwar, learned counsel for the petitioner has placed reliance on the decision of this Court reported in 2004 (1) GLT 347 (Jibeswar Thakuria and ors. vs. State of Assam and ors.) wherein it was emphasised that the departmental Secretary ought not have yielded to the pressure mounted by the Minister and for that matter, ought not have succumbed to political pressure. In the said case it was found that the impugned order of transfer was based on extraneous consideration. In that case request of the political bosses was acceded to by the departmental Secretary without any cross verification. 13. Mr. K.N. Choudhury, learned Sr. Addl. Advocate General has placed reliance on the decision reported in (2004) 4 SCC 245 (Union of India and ors. vs. Janardhan Debanath and anr.) in which the Apex Court made the following observations: 12. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions- status, service prospects financially- and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected W.P.(C) No. 1343/2012 Page 7 of 9

8 to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. 14. As the petitioner himself has stated in the writ petition that transfer is an incident of service. Needless to say that if an officer is transferred in exigencies of service, the court will not interfere with such order of transfer. In the instant case, although the petitioner has referred to the aforesaid documents annexed as Anenxure-5 colly and Anenxures- 7 and 8, nothing could be established that there is nexus between the said documents and the impugned order. This is coupled with the fact that the grounds urged in the earlier writ petition have now been urged in the instant case again. As to what was the order passed by this court, has been noted above. 15. After the earlier round of litigation fresh proposal was mooted by the Govt. for transfer of the petitioner vis a vis the respondent No. 8. I have gone through the records, i.e. the file in which the impugned order has been issued. On perusal of the same, I find nothing to establish the link between the impugned transfer order and the Annexure -5 colly and Annexures- 7 and 8 documents/ letters. In Annexure -16 note placed before the departmental Minister, the Secretary of the Department highlighted all the factual aspects of the matter with the proposal for transfer of the petitioner from Jagiroad to Guwahati and posting the respondent No. 8 in his place. Thereafter, the file was processed at various level and finally was placed before the Chief Minister who accorded his approval to the proposed transfer on It was upon such exercise in W.P.(C) No. 1343/2012 Page 8 of 9

9 the departmental level, the impugned order dated came to be issued. 16. Above being the position and there being no specific allegation of any malafide exercise of power by the private respondents, I see no reason to interfere with the impugned transfer order. Accordingly, the writ petition is dismissed. Kborah JUDGE W.P.(C) No. 1343/2012 Page 9 of 9