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2014 DIGILAW 232 (GAU)

ARUNAVA DEY v. STATE OF ASSAM

2014-02-26

UJJAL BHUYAN

body2014
Judgment & Order (ORAL) By way of this petition, under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of the notifications bearing No.AAA.1/2012/70 and No.AAA.1/2012 /70-B, both dated 19.02.2014, issued by the Principal Secretary to the Govt. of Assam, Personnel (A) Department, whereby respondent No. 3 has been transferred and posted as Addl. Deputy Commissioner, Karimganj and petitioner has been transferred and posted as Addl. Deputy Commissioner, Dima Hasao district, Haflong. 02. Facts of the case may be briefly noted. 03. Petitioner is an officer belonging to the Assam Civil Service (ACS) and he was serving as Addl. Deputy Commissioner, Cachar, Silchar. Following a circular dated 16.01.2014, issued by the Chief Electoral Officer, Assam for transfer of officers posted in their home districts or who have completed three years in a particular place of posting, a general transfer order in the form of notification dated 15.02.2014 was issued by the Principal Secretary to the Government of Assam, Personnel (A) Department. Amongst various officers, petitioner was transferred and posted as Addl. Deputy Commissioner, Karimganj. The said order was issued in the interest of public service. Pursuant thereto, petitioner was released by the Deputy Commissioner, Cachar, Silchar on 15.02.2014 to enable him to join as Addl. Deputy Commissioner, Karimganj. Thereafter, he joined at Karimganj on the same day i.e. 15.02.2014, which was informed by the Deputy Commissioner, Karimganj to the Principal Secretary of Personnel (A) Department by WT message of even date. Hardly four days had passed in the petitioner’s new posting at Karimganj when the impugned notification dated 19.02.2014 was issued. The said notification consists of three parts. By the first part of the notification i.e. No. AAA.1/2012/70, respondent No. 3, Addl. Deputy Commissioner, Cachar has been transferred and posted as Addl. Deputy Commissioner, Karimganj. It is mentioned that the same has cancelled the earlier notification No. AAA.80/2013/6, dated 19.09.2013. The second part of the notification deals with transfer and posting of another officer which does not affect the petitioner. As per the third part of the notification bearing No. AAA.1/2012/70-B, petitioner now serving as Addl. Deputy Commissioner, Karimganj, has been transferred and posted as Addl. Deputy Commissioner, Dima Hasao, Haflong. 04. Aggrieved by the above notification, petitioner has filed the present writ petition. 05. As per the third part of the notification bearing No. AAA.1/2012/70-B, petitioner now serving as Addl. Deputy Commissioner, Karimganj, has been transferred and posted as Addl. Deputy Commissioner, Dima Hasao, Haflong. 04. Aggrieved by the above notification, petitioner has filed the present writ petition. 05. Contention of the petitioner is that he was transferred from Silchar to Karimganj in the interest of public service on 15.02.2014. He had hardly served for four days at his new station when the impugned order has been issued. Respondent No. 3, who is serving as Addl. Deputy Commissioner, Cachar, was earlier transferred and posted as Addl. Deputy Commissioner, Kamrup vide the notification dated 19.09.2013, issued by the Secretary to the Govt. of Assam, Personnel (A) Department. He did not comply with the transfer order and remained at Cachar. By using his political connections, he got the said notification dated 19.09.2013 cancelled and managed his posting as Addl. Deputy Commissioner, Karimganj at the expense of the petitioner. Impugned transfer is, therefore, not in the public interest and is actuated by extraneous considerations, which is mala fide. Petitioner has also stated about his health condition requiring treatment at Silchar Medical College Hospital. 06. This Court by order dated 21.02.2014 directed the learned departmental counsel to produce the relevant record relating to the transfer of the petitioner and in the meanwhile stayed the impugned notification dated 19.02.2014. 07. Respondent No. 3 has filed an affidavit. It is stated that the petitioner remained in Barak Valley for most of his service career and there are allegations against him. On the other hand, respondent No. 3 is in the middle of a settlement operation and, therefore, the Deputy Commissioner, Cachar, Silchar is not in a position to release him from Silchar. Allegation of political manipulation has been denied. 08. Heard Mr. B Chakraborty, learned counsel for the petitioner and Mr. HK Mahanta, learned Standing Counsel, Personnel Department. Also heard Mr. JI Borbhuiya, learned counsel appearing for respondent No. 3. 09. Learned counsel for the petitioner submits that once a transfer order has been issued in public interest, the same cannot be cancelled or superseded unless overwhelming public interest requires such cancellation or supersession. Subsequent order must be supported by sufficient reasons. He submits that because of pressure exerted by Ministers and MLAs of Barak Valley, impugned transfer order has been issued. Subsequent order must be supported by sufficient reasons. He submits that because of pressure exerted by Ministers and MLAs of Barak Valley, impugned transfer order has been issued. Impugned order is, therefore, not in the public interest and is vitiated by mala fide. Learned counsel for the petitioner has placed reliance on the following decisions: - 1. 2001 (3) GLT 67, ZAKIR HUSSAIN VS. STATE OF ASSAM & ORS. 2. 2011 (5) GLT 513, I MOATEMJEN (DR.) VS. STATE OF NAGALAND. 3. 2013 (5) GLT 487, DUBOM BAGRA VS. STATE OF ARUNACHAL PRADESH & ORS. 10. Mr. Mahanta, learned Standing Counsel, Personnel Department has produced the record. 11. Mr. Borbhuiya, learned counsel appearing for respondent No.3 while refuting the contention of the petitioner that the impugned transfer order has been issued because of political pressure, however, contends that his client respondent No. 3 is in the midst of a settlement operation in Cachar district and, therefore, the district administration is finding it difficult to release him from his assignment in Cachar district. He, however, submits that there are serious allegations against the petitioner and, therefore, his transfer is justified. 12. I have heard learned counsel for the parties and also perused the relevant file as produced. 13. While it is true that transfer is an incident of service and the administration is the best judge to decide whom to transfer and where to post which officer and, therefore, courts are normally hesitant to interfere with orders of transfer, but when illegality is clearly manifest, court will not remain a silent spectator. 14. In this case, petitioner was transferred from Silchar to Karimganj in the public interest on 15.02.2014, on which date he joined at Karimganj. The record indicates that the said transfer of the petitioner was made because of Election Commission guidelines to transfer officials from their home district in view of the ensuing parliamentary election. Hardly four days had passed in his new station when the impugned transfer order was issued. The record shows that a note dated 15.02.2014 was put up before the Chief Minister, Assam signed by Sri Gautam Roy, Minister, PHE, Assam, Sri Ajit Singh, Minister of State (Independent), Excise, Sports Deptt. etc. and eight MLAs. As per the said note, the Chief Minister was requested to post respondent No. 3 as Addl. Deputy Commissioner, Karimganj and to transfer and post the petitioner to Haflong. etc. and eight MLAs. As per the said note, the Chief Minister was requested to post respondent No. 3 as Addl. Deputy Commissioner, Karimganj and to transfer and post the petitioner to Haflong. There is endorsement of the Chief Minister dated 15.02.2014 on the note. The record does not disclose any other reason for issuance of the impugned notification. 15. While recommendation of an MLA or a Minister, per se, would not render an order of transfer invalid, interference by Ministers and MLAs in such administrative decision making, particularly when they are not at all connected with the department concerned, would not at all be justified. Moreover, why should two Ministers and 8 MLAs show undue interest in the posting of a particular officer to such an extent that they should write to the Chief Minister that he be given a particular place of posting and why should the Chief Minister give indulgence to such unreasonable request? 16. In ZAKIR HUSSAIN (Supra), this Court held that once a transfer order is made in public interest, subsequent order cancelling or superseding earlier order must be supported by sufficient reasons. If any such order is passed in a cryptic manner without assigning any reasons, such an order would not be in public interest. 17. In I. MOATEMJEN (DR.) (Supra), this Court held as under:- (20) It is no doubt true, as has been held by the Apex Court in Mohd. Masood Ahmad that, merely because of the recommendation of an MLA or a Minister, an order of transfer does not become invalid. However, where an order of transfer is issued in public interest, and if the said order of transfer is sought to be modified, it has to be only on the ground of public interest and in the exigency of public service. For good and sufficient reasons and in the public interest, certainly the Respondent authority would be entitled to consider modification of the order of transfer. The record does not reveal that there was any other consideration apart from the letter of the Minister, Home, requesting retention of the Respondent No. 5 as DMO, Dimapur. It is also to be borne in mind that no reason was assigned in the said letter as to why the Respondent No. 5 is to be retained at Dimapur. The record does not reveal that there was any other consideration apart from the letter of the Minister, Home, requesting retention of the Respondent No. 5 as DMO, Dimapur. It is also to be borne in mind that no reason was assigned in the said letter as to why the Respondent No. 5 is to be retained at Dimapur. By the order dated 12.04.2011, the writ petitioner who was at Serial No. 8, the said list of 20 Officers transferred, was directed to move first. He complied with the order dated 12.04.2011 after relinquishing charge of his earlier posting as District Tuberculosis Officer, Tuensang, and thus, as far as the writ petitioner was concerned, the order of transfer stood implemented. (21) This Court in Zakir Hussain (Supra) had laid down that once an order of transfer is made in public interest, subsequent orders cancelling, modifying and superseding such order must be supported with sufficient reasons. This court also held that if any such order is passed in cryptic manner without assigning any reasons the same would seem to be not in public interest. In the instant case, as noted earlier, the order dated 03.06.2011 does not indicate that the said order was issued in public interest. It does not appear to be an order issued in public interest and/or in the exigency of public service. The record also does not portray any ground justifying modification of the order of transfer which was earlier issued in public interest. In fact, the Department had initially taken a decision not to entertain the request of the Minister, Home. However, only because of renewed requests by the Minister, Home, to accommodate his wishes and requests, the transfer order dated 12.04.2011 was modified. 18. In DUBOM BAGRA (Supra), this Court held that the transfer order in question having been issued in public interest, the Government fell in error in modifying the same after barely a week and that too, at the asking of an extraneous authority without there being any nexus to public interest. The Court held that it was not conceivable as to how someone who had no responsibility in a given department can pock his nose in the affairs of such department and the Chief Minister also obliged such request. 19. The Court held that it was not conceivable as to how someone who had no responsibility in a given department can pock his nose in the affairs of such department and the Chief Minister also obliged such request. 19. Having considered the above and on perusal of the record, this Court is of the unhesitant view that impugned notifications No.AAA.1/2012/70 and No.AAA.1/2012/70-B, dated 19.02.2014, cannot be sustained. Those are hereby set aside and quashed. Stay order granted on 21.02.2014 is made absolute. Writ petition is, accordingly, allowed. 20. Before parting with the record, this Court cannot, but observe that transfer order of respondent No. 3 dated 19.09.2013 whereby he was transferred and posted as Addl. Deputy Commissioner, Kamrup was not complied with for four months by the respondent No. 3, which was ultimately cancelled by the impugned notification following the note put up before the Chief Minister by the two Ministers and eight MLAs. The said order dated 19.09.2013 was issued in public interest. This speaks volumes about the interest of public service and administrative exigency. Beyond this, the Court would not like to make any further comment. 21. Record produced by Mr. Mahanta, learned Standing Counsel is returned back.