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2006 DIGILAW 194 (GAU)

Suresh Chandra Sarma v. State of Assam

2006-02-27

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. A.M. Mazumdar, learned senior Counsel assisted by Mr. N. Hoque, learned Counsel for the petitioner, Mrs. M. Das, learned Government counsel appearing for the official respondents and Mr. D.R. Gogoi, learned Counsel for the respondent No. 5. 2. Keeping in view the issue raised in this writ petition and on close perusal of the material available on records as well as upon hearing learned Counsel for the parties, this Court is of the view that since the matter relates to transfer, no fruitful purpose would be served by keeping the writ petition pending for its disposal in due course and accordingly it is taken up for final disposal to day itself at the order stage. 3. Initially, by Notification dated 9.9.2005, the petitioner, an A.C.S. working as Senior Assistant Settlement Officer, was transferred from Goalpara Revenue Circle to be posted as Sub-Divisional Officer (Civil) Dhansiri, Sarupathar and accordingly he was released from his post at Goalpara vide order dated 23.9.2005. In compliance of the said transfer order, the petitioner joined at Dhansiri, Sarupathar in Golaghat District on 4.10.2005 (Annexure 3 to the writ petition). 4. While he was working there for two months, to his utter surprise, the impugned Notification dated 8.12.2005 (Annexure 6 to the writ petition) was issued by the Secretary to the Government of Assam, Personnel (A) Department transferring him from Dhansiri, Sarupathar to Parbatjhora in the same capacity of Sub-Divisional Officer (Civil). By the same order, on the other hand, the respondent No. 5 also was transferred to Dhansiri, Sarupathar to replace the petitioner as S.D.O.(Civil) therein in partial modification of his earlier order of transfer dated 9.9.2005 by which, the respondent No.5 was transferred from Khumtai Revenue Circle to Parbatjhora in the said capacity of S.D.O.(Civil). 5. For the sake of convenience and ready reference, the impugned order dated 8.12.2005 (Annexure-6) may be reproduced as under: GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL (PEERSONNEL) ASSAM SECRETARIAT (CIVIL) : DISPUR GUWAHATI-6. ORDERS BYTHE GOVERNOR NOTIFICATION Dated, Dispur, the 8th December, 2005. No. AAA. 5/2005/45 : In partial modification of this Department's Notification No. AAP. 17/2005/4-P, dated 9.9.2005, Shri Takheswar Muktiar, ACS is posted as Sub-Divisional Officer (Civil), Dhansiri, Sarupathar. No. AAA. 5/2005/45-A : Shri Suresh Chandra Sarma, ACS, Sub-Divisional Officer (Civil), Dhansiri, Sarupathar is transferred and posted as Sub-Divisional Officer (Civil) Parbatjhora. Sd/- Md. Alauddin. No. AAA. 5/2005/45 : In partial modification of this Department's Notification No. AAP. 17/2005/4-P, dated 9.9.2005, Shri Takheswar Muktiar, ACS is posted as Sub-Divisional Officer (Civil), Dhansiri, Sarupathar. No. AAA. 5/2005/45-A : Shri Suresh Chandra Sarma, ACS, Sub-Divisional Officer (Civil), Dhansiri, Sarupathar is transferred and posted as Sub-Divisional Officer (Civil) Parbatjhora. Sd/- Md. Alauddin. Secretary to the Government of Assam, Personnel (A) Department. 6. Mr. Mazumdar, learned senior Counsel has assailed the impugned order of transfer basically on two grounds namely (i) this impugned transfer order was passed not in public interest and (ii) it is a case of frequent transfer as the petitioner was transferred from his original place of posting by the impugned order immediately after two months of his joining without recording any proper justification or valid reason therein. 7. Referring to the Office Memorandums dated 4.2.2002 and 22.5.2005 (Annexed as Annexures 4 and 5 to the writ petition), the learned senior Counsel has contended that those memorandums were issued by the Government in the nature of policy decision with the aim t6 streamline the system of transfer and posting of Government officials so that they are not unnecessarily subjected to frequent transfer unless the public interest demands as well as to allay demoralization of the Government officers. According to him, those office memorandum expressly stipulate that though the transfer itself is an incidence of service, such transfer needs to be effected in public interest only. Further, in case of out of turn transfer, i.e., before completion of three years of service in a particular place, proper justification and grounds must be recorded in writing for such transfer and thereafter it must get the approval of the Hon'ble Chief Minister. However, according to him, in the instant case, no proper justification whatsoever was recorded in writing and no justifiable ground whatsoever was ever communicated to him in issuing the impugned transfer order. Even the transfer order, on the face of it, does not reflect that it has been passed in the public interest. 8. To bolster up such submission, Mr. Mazumdar, learned Counsel for the petitioner, has, relied upon two decisions of this Court in (i) Sougaijam Brojendro Singh v. State of Manipur and Ors. reported in (1996) 1 GLR 303 and (ii) Dayal Das v. State of Assam and Ors. reported in (2002) 2 GLT 109. 9. 8. To bolster up such submission, Mr. Mazumdar, learned Counsel for the petitioner, has, relied upon two decisions of this Court in (i) Sougaijam Brojendro Singh v. State of Manipur and Ors. reported in (1996) 1 GLR 303 and (ii) Dayal Das v. State of Assam and Ors. reported in (2002) 2 GLT 109. 9. In Sougaijam Brojendro's case (supra), this Court in paragraph 6 held that once a transfer order was made in public interest, subsequent orders cancelling or superseding the same must be supported with sufficient reasons. 10. In Dayal Das's case (supra), it was, in paragraph 4, held that the guidelines for transfer of officers by the Office Memorandum in question might not have any statutory force but those were checks against any arbitrary transfer and accordingly the direction was given in the aforesaid case to record in writing the justifications of the transfer and thereafter the same be placed before the Chief Minister for his approval. 11. In support of the impugned order, Mr. Gogoi, learned Counsel appearing for the respondent No. 5, has strenuously argued that since the transfer order itself is an incidence of service and there was no mala fide in issuance of this impugned transfer order, this Court may not interfere with the same. According to him, the petitioner has failed to show any materials on record that this transfer order was not made in public interest and even no case of frequent transfer has been made out. His firm contention is that to make out a case for frequent transfer, the incumbent must be transferred at least on more than two occasions. In the instant case, it was only an one time transfer of the petitioner i.e., from Dhansiri, Sarupathar to Parbatjhora. That being so, under at no circumstances, this case can be attributed to be a case of frequent transfer. He has further contended that in the instant case, even the hon'ble Chief Minister has given his approval as required and once the petitioner's transfer has been approved by getting the seal of Chief Minister's Office, the impugned order needs not be disturbed. 12. I have given my anxious consideration to the rival submissions so canvassed on behalf of both the sides and also carefully perused the official records so produced by the learned Government counsel. 12. I have given my anxious consideration to the rival submissions so canvassed on behalf of both the sides and also carefully perused the official records so produced by the learned Government counsel. It is revealed from the scanning of the records and the impugned order itself that the transfer order was passed not in public interest as there was no whisper in this regard either on the body of the order or in the records, so placed. It also appears from close perusal of the Govt. records that it is correct that the Chief Minister gave the approval for such transfer but there was no other sufficient reasons or proper justification recorded in writing to effect such transfer save and except the noting that the petitioner served only for two months. 13. Though the executive instruction of such nature, as indicated above, is not having any statutory force but the requirement prescribed therein, as a guideline, needs to be taken into consideration by the Government in taking any decision for transfer and the very purpose of issuing such executive instruction shall not be permitted to be frustrated. Admittedly, it is a case of out of turn transfer because an officer is normally allowed to continue for three years in the place of posting. In the case at hand, the petitioner was transferred immediately after completion of two months. But significantly, this transfer has not been justified by recording any cogent or plausible ground in writing prior to placement of the same before the Hon'ble Chief Minister for his approval. 14. It is settled that administrative action must be reasonable, fair and transparent. In the instant case, the impugned transfer order lacks openness and transparency and as such the same deserves interference of this Court in exercise of its power vested under Article 226 of the Constitution of India. 15. For the foregoing reasons and discussions, this Court is of the view that this impugned order cannot be allowed to continue and accordingly the same stands quashed so far as the petitioner is concerned. 16. However, liberty is granted to the State respondents to take necessary steps to pass appropriate orders, if so advised, in this regard in accordance with law and also by recording proper justification and sufficient reason in writing. 17. Consequently, this writ petition succeeds and stands allowed. 16. However, liberty is granted to the State respondents to take necessary steps to pass appropriate orders, if so advised, in this regard in accordance with law and also by recording proper justification and sufficient reason in writing. 17. Consequently, this writ petition succeeds and stands allowed. Considering the facts and circumstances of the case, however, there shall be no order as to costs.