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2001 DIGILAW 226 (GAU)

Dayal Das v. State of Assam and Ors.

2001-08-16

A.K.PATNAIK

body2001
A.K. PATNAIK, J- The petitioner is working as Divisional Officer under the Soil Conservation Department under the Govt. of Assam. By an order dated 28.3.2000, the services of the petitioner were placed at the disposal of Karbi Anglong Autonomous Council, Diphu for posting him as Divisional Officer, Hamren Soil Conservation Division. The Karbi Anglong Autonomous Council accepted the posting of the petitioner as Divisional Officer, Hamren Soil Conservation Division by order dated 5.4.2000. He was thereafter transferred by the authority of the 'Karbi Anglong Autonomous Autonomous Council to Kohora Soil Conservation Division, Dolmara by order dated 19.9.2000. By a notification dated 27.7.2001, the Govt. of Assam Soil Conservation Department made a chain of transfers in the Soil Conservation Department and in the said chain of transfers the petitioner has been transferred from the post of Divisional Officer, Kohora Soil Conservation Department, Kohora and posted as Divisional Officer, Eastern Assam Soil Conservation Division, Dibrugarh. By the said notification Sri P. Barkakati (respondent No. 5) who was posted as Divisional Officer, South Bank Soil Conservation Division, Guwahati has been transferred and posted as Divisional Officer, Kohora Soil Conservation Division, Kohora. By the said notification, Sri J.C. Gogoi (respondent No. 4) has been transferred from the post of Divisional Officer, Eastern Assam Soil Conservation Division,1 Dibrugarh and posted as Divisional Officer, Soil Conservation Research Division, Guwahati. In this writ petition the petitioner has challenged his transfer from Kohora Soil Conservation Division, Kohora to the Eastern Assam Soil Conservation Division, Dibrugarh by the said notification dated 27.7.2001. On 30.7.2001, this Court issued rule, but did not pass any stay order as prayed by the petitioner and instead observed that the prayer for stay again may be renewed after production of record. 2. The records have been produced before the Court today and the prayer for stay has been renewed by Mr A.K. Bhattacharjee, learned counsel for the petitioner. 2. The records have been produced before the Court today and the prayer for stay has been renewed by Mr A.K. Bhattacharjee, learned counsel for the petitioner. Mr Bhattacharjee submitted that by the office memorandum dated 19th Sept 92 of the Government of Assam, Department of Personnel, Personnel (B), the Government policies of transfer of officials have been laid down and one of the guidelines indicated in the said office memorandum is that where public interest demands, that an officer should be transferred from his place of posting even before completion of 3 years in a place, proper justification and grounds may be recorded in writing for the transfer and orders issued only after getting approval of the Chief Minister for such a transfer. Mr Bhattacharjee submitted that this particular guideline laid down in the office memorandum dated 9th September 1992 has been violated because the petitioner has not completed 3 years service either under the Karbi Anglong Autonomous Council or at Kohora Soil Conservation Division, Kohora. He further submitted that the petitioner still continues to be the Divisional Officer, Kohora Soil Conservation Division and he has not been released from the said charge as yet. 3. Mr P.C. Deka, learned counsel for the respondent No. 5, on the other hand, submitted that pursuant to the impugned notification dated 27.7.2001 the said respondent No. 5 has submitted a joining report as Divisional Officer, Kohora on 30.7.2001 and he has been allowed to join by the Deputy Commissioner, Karbi Anglong Autonomous Council on 13/14th August, 2001. Mr Deka, however, fairly stated that he has no instruction as to whether the respondent No. 5 has been released from the post of Divisional Officer, South Bank Soil Conservation Division, Guwahati from where he is sought to be transferred under the impugned notification dated 27.7.2001. 4. On a perusal of the records produced by Mr B.P. Bora, learned senior Govt. Advocate before this Court, I find that the Minister, Soil Conservation Department has on 20.7.2001 instructed the Commissioner and Secretary, Soil Conservation Department to transfer the Divisional Officers and post them at the places as mentioned in his said instruction. Against SI. 4. On a perusal of the records produced by Mr B.P. Bora, learned senior Govt. Advocate before this Court, I find that the Minister, Soil Conservation Department has on 20.7.2001 instructed the Commissioner and Secretary, Soil Conservation Department to transfer the Divisional Officers and post them at the places as mentioned in his said instruction. Against SI. No. 7 of the said instructions he has directed that respondent No. 5 who is in South Bank Soil Conservation Division, Guwahati be posted in Kohora Soil Conservation Division, Kohora and the petitioner who is posted as Divisional Officer, Kohora Soil Conservation Division, Kohora be posted in South Bank Soil Conservation Division, Guwahati. The Commissioner and Secretary, Soil Conservation Department, however, has suggested some changes to the Minister and one of the changes suggested by him is that the petitioner be posted as Divisional Officer Eastern Assam Soil Conservation Division, Dibrugarh and this suggestion has been approved by the Minister on 24.7.2001. Thereafter the impugned notification has been issued on 27.7.2001. The records produced before this Court show that no reasons whatsoever have been recorded justifying the transfer of the petitioner from Kohora Soil Conservation Division, Cohora or from Karbi Anglong Autonomous Council where he had not completed the period ofN3 years. The records produced before the Court also do not indicate that the aforesaid transfer of the petitioner before completion of three years service from his place of posting was placed for approval of the Chief Minister. The guidelines for transfer of officers in the office memorandum dated 19th Sept 92 may not have statutory force, but are checks against arbitrary transfers and deviations from the said guidelines may result in an arbitrary transfers. For these reasons, I am of the view that the transfer of the petitioner by the impugned notification dated 27.7.2001 should not be given effect to till the justification of his transfer with grounds are recorded in writing and these are placed before the Chief Minister for approval. Since by the impugned notification dated 27th July, 2001 a chain of transfers has been made and any interim order passed by this Court would affect the chain, in any considered opinion, this Court should not keep the matter pending in Court by passing an interim order of stay and should dispose of the writ petition with appropriate directions as indicated above. 5. 5. I, therefore, dispose of this writ petition with a direction that the justifications with grounds, if any, for transferring the petitioner from Karbi Anglong Autonomous Council and in particular from Kohora Soil Conservation Division, Kohora before completion of 3 years of his posting at the said place be recorded in writing by the competent authority of the Soil Conservation Department and the justification with grounds for such transfer be placed before the Chief Minister, Assam for his approval. In case, the competent authority of the Soil Conservation Department intends to rescind or cancel the transfer in the absence of proper justification with grounds, it will be open for the competent authority of the Soil Conservation Department to do so in which case it will be not necessary for the matter to be placed before the Chief Minister. Until such orders are placed with the approval of the Chief Minister for transfer of the petitioner from Kohora Soil Conservation Division, Kohora to the post of Divisional Officer, Eastern Assam Soil Conservation Division, Dibrugarh or to any other place, the petitioner will continue as Divisional Officer, Kohora Soil Conservation Division at Guwahati. This order, however, will not affect the right of the respondent No. 5 to his salary for the period during which the petitioner rernains as Divisional Officer, Kohora Soil Conservation Division, Kohora. Since the respondent No. 4 is not affected by this order in any manner, I have not felt it necessary to await service of notice on respondent No. 4 and to hear him or his counsel before" passing this order. It is made clear that by this order the chain of transfers other than the transfer from and to Kohora Soil Conservation Division, Kohora made by impugned notification dated 27.7.2001 will not be affected in any manner. A copy of this order will be furnished to Mr H. Mahanta, learned Government Advocate by Tuesday. __________________ OFFICE MEMORANDUM ISSUED BY THE GOVT. OF ASSAM IN THE LIGHT OF THE ABOVE JUDGMENT Government of Assam Department of Personnel Personnel (B) Dispur: Guwahati No. ABP. 116/04/4 Dated Dispur the 4th February, 2002 OFFICE MEMORANDUM Subject: Policies of Transfer of Government officials. As per State Government's standing OM No. ABP.40/91/117 dated 19.8.1992, the transferable officers and staff should normally be transferred only upon completion of 3 years of service at one place. 116/04/4 Dated Dispur the 4th February, 2002 OFFICE MEMORANDUM Subject: Policies of Transfer of Government officials. As per State Government's standing OM No. ABP.40/91/117 dated 19.8.1992, the transferable officers and staff should normally be transferred only upon completion of 3 years of service at one place. But an officer need not necessarily be transferred when he completes 3 years in one station if the interest of public does not demand so. On the said O.M., it has also been stipulated that whenever public interest demands that an Officer should be transferred from his place of posting even before completion of 3 years in the place. Proper justification and ground may be recorded in writing for the transfer and orders issued only after getting approval of the Chief Minister for such a transfer. However, in practice, it has been observed that such stipulation of taking prior approval of Chief Minister is not always obtained while making transfer and posting of Government officials and for which litigation often take place. The Hon'ble Gauhati High Court in the recent order dated 16.8.2001*in writ petition W.P.(C) No, 5216/2001 (Shri Dayal Das-Vs-State of Assam & others) has directed the respondents to comply with this provision as measure to check arbitrary transfer of Government officials before completion of normal tenure of 3 years. It is therefore, reiterated that all concerned should strictly adhere to the instructions/guidelines issued vide State Government O.M. quoted above and not to violate the provisions of the said office memorandum. Sd/- Commissioner & Secretary to the Govt. of Assam, Personnel Department."