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2014 DIGILAW 263 (GAU)

NASER KHOSROO v. STATE OF ASSAM

2014-03-04

UJJAL BHUYAN

body2014
JUDGMENT This case was heard on 28-02-2014 and today is fixed for delivery of order. Heard Mr. D.Das, learned Senior Counsel for the petitioner and Mr. J.I. Borbhuyan, learned Standing Counsel, Public Health Engineering (PHE) Department. Also heard Mr. P. Bora, learned Counsel appearing for respondent No.7. This is an application under article 226 of the Constitution of India whereby the petitioner has challenged the legality and validity of the notification dated 24-12-2013 issued by the Secretary to the Government of Assam, PHE Department whereby respondent No.7 has been transferred and posted as Executive Engineer at Sivasagar (PHE) Division vice the petitioner transferred and posted as Executive Engineer at Additional Chief Engineer (PHE) Upper Assam Zone, Nagaon with immediate effect and until further order. Case of the petitioner is that he was posted as Executive Engineer in the Dhemaji PHE Division in the month of May, 2010. Thereafter, by order dated 25-01-2012, he was transferred and posted at Sivasagar PHE Division where he joined on 09-04-2012. Petitioner had hardly completed 19 months at Sivasagar when the impugned notification dated 24-12-2013 was issued. Being aggrieved by the aforesaid order of transfer, petitioner has filed the present writ petition. Contention of the petitioner is that impugned transfer order has been issued only to accommodate respondent No.7. Impugned order itself indicates that the same has been issued in partial modification of earlier notification dated 27-11-2013 in respect of respondent No.7. According to the petitioner, by the earlier notification dated 27-11-2013, respondent No.7 was transferred to Nagaon but he did not join there. By using political connection, he got the said order modified by the impugned notification. His further contention is that there is no approval of the Chief Minister to the transfer of the petitioner though as per Government guidelines in case of a transfer within a period of two years, as in his case, approval of the Chief Minister is required to be obtained. Moreover, there is no justification for the transfer of the petitioner and therefore there is no public interest involved in such transfer. Respondent No.7 by manipulation has managed a posting of his choice in his home district of Sivasagar. This Court by order dated 06-01-2014 issued rule and directed maintenance of status-quo as on 06-01-2014. The Departmental Counsel was also directed to produce the record before the Court for perusal. Respondent No.7 has filed an affidavit. Respondent No.7 by manipulation has managed a posting of his choice in his home district of Sivasagar. This Court by order dated 06-01-2014 issued rule and directed maintenance of status-quo as on 06-01-2014. The Departmental Counsel was also directed to produce the record before the Court for perusal. Respondent No.7 has filed an affidavit. While denying the allegations made by the petitioner, respondent No.7 has stated that he was serving as Executive Engineer in Bokakhat PHE Division since 08-03-2011 when he was transferred to Nagaon in the month of November, 2013. But before he could join at Nagaon, respondent No.7 received the impugned transfer order. He has contended that it is the prerogative of the Government to transfer its employees anywhere within the State of Assam in public interest. Petitioner has filed reply affidavit to the affidavit filed by respondent No.7. While asserting that he is still serving at Sivasagar, petitioner has reiterated his contentions made in the writ petition. Additionally, he submits that respondent No.7 cannot be posted at Sivasagar as Sivasagar is his home district as per the instructions of the Election Commission of India not to post officers in their home districts in view of the ensuing Lok Sabha elections. Submissions made by learned Counsel for the parties are on pleaded lines and therefore it is considered not necessary for a detailed narration of the submissions made. However, Mr. J.I. Borbhuyan, learned Standing Counsel of the PHE Department has produced the record and submits therefrom that there is approval of the Chief Minister to the transfer of the petitioner and respondent No.7 and therefore, the submission made by the learned Counsel for the petitioner to the contrary is not correct. Mr. Bora, learned Counsel for the respondent No.7, also submits that Jorhat is the home district of the petitioner and, therefore, he cannot be posted at Sivasagar which is a part of the Jorhat Lok Sabha Constituency. I have heard learned Counsel for the parties and also perused the relevant record. The record indicates that a joint petition dated 18-12-2013 was submitted by two MLAs Shri Anjan Dutta and Shri Sushanta Borgohain to the Chief Minster, Assam stating that it had come to their notice that a proposal for posting of respondent No.7 at Sivasagar replacing the petitioner was under process. The record indicates that a joint petition dated 18-12-2013 was submitted by two MLAs Shri Anjan Dutta and Shri Sushanta Borgohain to the Chief Minster, Assam stating that it had come to their notice that a proposal for posting of respondent No.7 at Sivasagar replacing the petitioner was under process. They stated that the said proposal of transfer was sought for by the general public as the present incumbent (petitioner) was unable to discharge his functions properly due to poor health. The Chief Minister was requested to give his concurrence to the transfer proposal in the public interest. There is an endorsement of the Chief Minister dated 20-12-2013 on the body of the petition itself for posting of respondent No.7 accordingly. The Departmental Minister also instructed the Departmental Secretary on 24-12-2013 to issue the transfer order as per the order of the Chief Minister. Following the same, the corresponding note-sheet indicates issuance of the impugned order. Interestingly, the private secretary to the Departmental Minister wrote to the Departmental Secretary on 26-12-2013 i.e., just two days after issuing the impugned transfer order that as per telephonic instruction of the Departmental Minister, the transfer order of respondent No.7 may be kept pending. The corresponding note-sheet indicates receipt of the said letter but it was noted that transfer order of respondent No.7 was already issued on 24-12-2013 as per verbal instruction of the Departmental Minister. It is true that transfer orders issued at the request of Ministers and MLAs per-se would not stand invalidated but in this particular case, the record does not disclose any departmental initiative or exercise setting in motion the transfer proposal of the petitioner and respondent No.7. Again, the record does not disclose as to what was the necessity or justification for partial modification of the earlier notification dated 27-11-2013 whereby respondent No.7 was posted at Nagaon. On the contrary, as noticed above, the Departmental Minister appears to have made a complete volte-face within 48 hours by asking the Departmental Secretary to keep in abeyance the transfer of respondent No.7 to Sivasagar. In the circumstances as noticed above, Court is of the view that a fresh decision is required to be taken by the departmental authorities regarding the transfer and posting of the petitioner and respondent No.7. In the circumstances as noticed above, Court is of the view that a fresh decision is required to be taken by the departmental authorities regarding the transfer and posting of the petitioner and respondent No.7. Accordingly, the Secretary to the Government of Assam, PHE Department is directed to pass a fresh order regarding the transfer and posting of the petitioner and respondent No.7 keeping in mind the administrative exigencies and the public interest, without being influenced in any manner by the note put up by the MLAs and the Departmental Minister. Such a decision shall be taken within a period of 15 days from today. Till such time, status-quo order passed on 06-01-2014 shall continue. Impugned notification dated 24.12.2013 would be subject to the fresh order to be passed by the Departmental Secretary. Writ petition is allowed to the extent indicated above. Record produced by Mr. Borbhuyan, learned Standing Counsel is returned back.