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2001 DIGILAW 243 (GAU)

Zakir Hussain v. State of Assam and Ors.

2001-08-28

AFTAB H.SAIKIA

body2001
Heard Mr. BP Kataky, 'learned senior counsel for the petitioner assisted by £ Mr. DR Gogoi and also Mr. GK Bhattacharyya, the learned senior counsel assisted by Mr. B. Chakraborty learned counsel for the respondent No.4 and also heard Mr. HK Mahanta learned Govt counsel on behalf of the State respondent. 2. Despite notice, no affidavit-in-opposition has been filed on behalf of the State-respondent but at the time of hearing Mr. Mahanta has produced the relevant records which has been perused accordingly. By this writ petition the petitioner has challenged the order dated 5.6.2001 by which the petitioner, while working as Junior Engineer at Morigaon, was transferred to Bhurbandha Development Block. By the said order itself, transfer order of respondent No.4 dated 19.3.2001 has been stayed. Be it noted that vide order dated 19.3.2001 (vide Annexure IV to the writ petition) the petitioner was transferred to Morigaon while the respondent No.4, working as Junior Engineer at Morigaon, was transferred and posted at Kothiatoli. By the impugned notification dated 5.6.2001 the respondent No.4 was allowed to continue at Morigaon, due to stay of the notification dated 19.3.2001. 3. Shri Kataky, the learned counsel appearing on behalf of the petitioner, specifically argues that the impugned notification dated 5.6.2001 on the face of itself is illegal and liable to be set aside only on the count mat the same has been issued only to accommodate the respondent No. 4 without assigning any reasons for stay of the earlier notification dated 19.3.2001 when both the notification have been issued for public interest. In support of the said notification Mr. Kataky has relied on two decisions of this Court namely Sougaijam Brojendro Singh vs. State of Manipur & others reported in (19%) 1 GLR 303 (1996 (1) GLJ 101) and Roukuolhoulie Angami vs. State of Nagaland & others reported in (1997) 3 GLR 1 (1997 (2) GLJ 122) respectively. 4. In Sougaijam Brojendro Sigh's case (supra), this Court held in paragraph 6 as follows : "From the above quoted orders, it would clearly show that from the period from 18.9.95 to 13.10.95 as many as 3 (three) transfer orders have been passed. This would clearly show that the order has not been passed after application of mind but with an unholy haste and therefore, it cannot be said that the appropriate authority has exercised the power vested in them in public interest. This would clearly show that the order has not been passed after application of mind but with an unholy haste and therefore, it cannot be said that the appropriate authority has exercised the power vested in them in public interest. From the instances recited above it would clearly reflect mat the mind of the authority has been influenced by extraneous consideration. Powers are being misused in the guise of public interest. Surprising enough, all the aforesaid order have been passed by the same officer and yet no reason has been assigned necessitating of passing of the impugned order. Once the transfer order is made in public interest, subsequent orders cancelling or superseding must be supported with sufficient reasons." 5. Again in the Roukuolhoulie Angami's case (supra) this Court in paragraph 8 of the judgment held as follows: "This Court in a catena of decision has held mat, for cancellation, modification or keeping in abeyance of the transfer order passed in public interest must be supported with sufficient reasons necessitating for passing such order. The view taken by this Court has rationale behind it. Once the transfer order is made in public interest Court normally do not interfere unless the order is passed with malafide or against the statutory rules. The only way open to the aggrieved Government servant is to file a representation before the competent authority to redress his grievances. But this Court insist that for cancellation/modification or keeping it in abeyance of such order must be supported with sufficient reasons, because transfer of officers are always made in public interest and after elaborate exercise as to who should be transferred where in the exigency of the administration. While processing the transfer order, various factors are taken into consideration. One such factors being the duration of the stationing of one officer in a particular station for a long time. If an officer is posted in a particular station for a long time, no doubt, that he also acquires a considerable knowledge about the administration of the area but at the same time a he also often establishes vested interest in the area because of his long association and to avoid eventualities timely posting is always called for. If an officer is posted in a particular station for a long time, no doubt, that he also acquires a considerable knowledge about the administration of the area but at the same time a he also often establishes vested interest in the area because of his long association and to avoid eventualities timely posting is always called for. Therefore, if the transfer order made in public interest is allowed to be taken away by another cryptic order modifying/cancelling or keeping in abeyance of the transfer order without assigning any reasons, it ceases to be in public interest. Therefore, it must be held that the order has been passed at the whims and caprice of the authorities exercising b the power. Public interest would not be allowed to be sacrificed at the altar of the whims and caprice of the authority exercising the power. It must be grasped that public authority possesses to use for public interest." 6. The principle laid down in both the two cases is that once transfer order is made in public interest, subsequent orders cancelling or superseding must be supported with sufficient reasons. If any such order is passed in cryptic manner without assigning any reasons mat would seem to be not in public interest. 7.1 find enough force in the submissions made on behalf of the petitioner. It is correct that in exercising the discretionary powers so conferred on the Govt in dealing with transfer matters which is its prerogative, the authority must act with all fairness and reasonableness. The authority must not be allowed to exercise such power arbitrarily or with its whims and fancies. 8. Mr. Bhattacharyya learned senior counsel for the respondent No.4 vehemently contests the submission advanced on behalf of the petitioner justifying the impugned notification dated 5.6.2001. He submits that the authority in its wisdom has passed this impugned notification in the public interest and as such there is no illegality or irregularity in passing the said order. e 9. As stated earlier it appears on the face of the record that the authority in passing the subsequent impugned notification did not assign any reason whatsoever for cancelling and superseding the earlier order dated 19.3.2001 and in that view of the matter I am not at all in agreement with the submission of Mr. Bhattacharyya, the learned senior counsel. 10. As stated earlier it appears on the face of the record that the authority in passing the subsequent impugned notification did not assign any reason whatsoever for cancelling and superseding the earlier order dated 19.3.2001 and in that view of the matter I am not at all in agreement with the submission of Mr. Bhattacharyya, the learned senior counsel. 10. For the reasons and discussions indicated above, I am of the considered opinion that the impugned notification dated 5.6.2001 suffers from illegality and arbitrariness and in the light of the discussions as above, the same is quashed. Interim order passed on 13.6.2001 stands confirmed. 11. Misc Case No.867 of 2001 accordingly stands disposed of. 12. In the result, this writ petition is allowed. No costs.