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2008 DIGILAW 86 (GAU)

Kishore Kumar Baishya v. State of Assam and Ors.

2008-02-01

HRISHIKESH ROY, J.CHELAMESWAR

body2008
Hrishikesh Roy, J:- 1. Heard Mr. A.K. Bhattacharyya, learned senior counsel appearing for the appellant/writ petitioner. Also heard Mr. P. Talukdar, learned standing counsel for the Water Resources Deptt. Mr. A.K. Goswami. learned senior counsel represents the respondent No. 4. 2. The appellant, who at the relevant time was posted as Asstt. Executive Engineer in Hatsingimari Water Resources Sub-Division, has approached this court by filing W.P.(C) No. 3115/07 to challenge the transfer order dated 20.6.2007, whereby the respondent No. 4 Aktaruz Zarnan Azad was posted at Hatsingimari Sub-Division, while the appellant was availing earned leave w.e.f. 15.6.2007 to 14.7.2007. 3. The writ petition came to be dismissed by the learned Single Judge on 29.6.2007, who after perusal of the original records found that the respondent No. 4 was transferred and posted to Hatsingimari as the area was suffering from heavy floods and therefore the post should not be left vacant during the leave period of the writ petitioner. Accordingly the learned Single Judge declined to interfere with the transfer order. By the said impugned order dated 29.6.2007 the writ petitioner was ordered to be given appropriate posting order after expiry of his leave. 4. Appearing for the appellant, Mr. A.K. Bhattacharyya, learned senior counsel raises only one contention to challenge the impugned order of transfer. The learned counsel submits that the writ petitioner was posted at Hatsingimari Sub-Division by order dated 3.12.2005 and the impugned transfer order dated 20.6.2007 has been issued even before the appellant had completed the normal three years tenure at his place of posting. Accordingly, it is contended that before the impugned transfer order was issued before completion of the normal tenure of 3 years by the appellant, prior approval of the Chief Minister should have been taken, in terms of Govt. memorandum dated 4.2.2002, which lays down the transfer guidelines to be followed for transferring Assam Govt. officials. 5. It is not in dispute that the impugned transfer order dated 20.6.2007 has been issued on the basis of the approval granted by the departmental Minister on account of the critical flood situation in the concerned area and the approval of the Chief Minister has not been obtained in terms of the Govt. memorandum dated 4.2.2002. 6. Therefore, the legality of the transfer order has to be examined with reference to the aforesaid memorandum dated 4.2.2002. memorandum dated 4.2.2002. 6. Therefore, the legality of the transfer order has to be examined with reference to the aforesaid memorandum dated 4.2.2002. Whether the requirement of the said memorandum creates any enforceable right in favour of an affected Govt. servant, in our view should decide the fate of the impugned challenge. 7. Mr. A.K. Goswami, learned senior counsel appearing for the respondent No. 4, whose posting order has been challenged in the present proceeding, has referred to the decisions of this court reported in Kalyan Kr. Sarkar v. Alok Kanti Paul Choudhury & Ors., 2006 (3) GLT 624 and also the decision reported in Pramath Ch. Sarma v. State of Assam & Ors. (2007) 1 GLT 212. In the said two decisions, this court was examining the Govt. memorandum dated 4.2.2002 in the context of challenge to transfer orders and it was held that the guidelines contained in the memorandum dated 4.2.2002 has no statutory force and accordingly no enforceable right in favour of any aggrieved party would arise out of the aforesaid guidelines. 8. In view of the aforesaid declaration of the court in Kalyan Kr. Sarkar (supra) and Pramath Ch. Sarma (supra), merely because the appellant has not completed 3 years tenure at Hatsingimari, would not give him an enforceable right to maintain a challenge to transfer of respondent No. 4 to his post. We are also of the view that no infraction of any statutory right of the appellant have been affected by the impugned order of posting. No mala fide is also alleged with regard to the said posting order. Because of limited scope of interference of the court in matters of transfer, which should normally be left to the discretion of the administration, we are of the opinion that the challenge made by the appellant has rightly been rejected by the learned Single Judge. 9. It further appears that justification for issuing the impugned posting order, namely, the flood situation in the concerned area were noted by the learned Single Judge and accordingly by the impugned order dated 29.6.2007 he declined to entertain the writ petition filed by the appellant. The decision rendered by the learned Single Judge, on the basis of the reasoning given, in our view, ought not to be interfered with by entertaining the present appeal. 10. The decision rendered by the learned Single Judge, on the basis of the reasoning given, in our view, ought not to be interfered with by entertaining the present appeal. 10. This writ appeal is accordingly held to be without any merit and the same is hereby dismissed. No cost.