Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 417 (GAU)

Mohan Chandra Poddar v. State of Assam & Ors.

2014-04-08

UJJAL BHUYAN

body2014
1. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of notification dated 05.02.2014 issued by the Commissioner and Special Secretary to the Government of Assam, Public Works Department (PWD) (Roads). 2. Case of the petitioner is that by order dated 15.05.2013 issued by the first respondent, petitioner was promoted to the post of Superintending Engineer and stationed in the NEC Cell in the Office of the Chief Engineer, PWD. Petitioner took over charge on 20.06.2013. 3. By Government notification dated 27.08.2013, petitioner was transferred to and posted as a Superintending Engineer, PWD, Mangaldoi Road Circle against existing vacancy. Petitioner took over charge at Mangaldoi on 09.09.2013. 4. Petitioner had hardly completed 5 months at Mangaldoi when the impugned notification dated 05.02.2014 was issued by the first respondent. By the said notification, a large number of Executive Engineers of the Department were promoted to the post of Superintending Engineer and two Superintending Engineers including the petitioner were transferred. Petitioner was transferred to Karimganj Border Road Circle (BRC). He was directed to handover charge of the Office of Superintending Engineer, Mangaldoi Road Circle to respondent No. 3, who was promoted from Executive Engineer to Superintending Engineer and posted at Mongaldoi vide the said notification dated 05.02.2014. 5. Aggrieved, petitioner has filed the present writ petition assailing the legality and correctness of the impugned notification pertaining to his transfer. 6. Contention of the petitioner is that the transfer order has been issued in malafide exercise of power to accommodate respondent No. 3 at Mangaldoi. It is further contended that as per the transfer policy of the Government of Assam contained in the office memorandum of the Personnel Department dated 06.08.2013, the normal tenure of posting of an officer in a particular place would be 3 years but in the case of transfer of an officer who has not completed 2 years in a particular place of posting, approval of the Chief Minister would be required if transfer is made before completion of 2 years in a particular place of posting. Since petitioner has been transferred after only about 5 months of his joining at Mangaldoi, approval of the Chief Minister was required but without obtaining approval of the Chief Minister, the impugned transfer notification was issued. 7. Since petitioner has been transferred after only about 5 months of his joining at Mangaldoi, approval of the Chief Minister was required but without obtaining approval of the Chief Minister, the impugned transfer notification was issued. 7. This Court by order dated 12.02.2014 directed the learned Standing Counsel, PWD to produce the relevant record relating to transfer of the petitioner and further directed maintenance of status quo as regards posting of Superintending Engineer, PWD, Mangaldoi Road Circle as on 12.02.2014. 8. An additional affidavit was filed by the petitioner on 15.02.2014 stating that the local MLA of Kalaigaon, Sri Mukunda Ram Choudhury had requested the petitioner to allot some contract works to the contractors of his choice. Since petitioner did not accede to the request of the local MLA, apprehension of the petitioner is that he has been victimized at the instance of the said MLA by issuance of the transfer order. Transfer order is thus not in the public interest. 9. Respondent Nos. 1 and 2 have filed a common affidavit. Stand taken in the affidavit is that though petitioner had made allegations against the local MLA, he has not been impleaded as a respondent in the writ proceeding. In the absence of the local MLA, allegation of malafide may not be gone into. Public complaints were received against the petitioner because of which he was transferred from Mangaldoi to Karimganj. Further stand is that petitioner cannot seek enforcement of the office memorandum dated 06.08.2013 in a proceeding under Article 226 of the Constitution of India. Denying that transfer order was issued to give undue favour to the respondent No. 3, respondent Nos. 1 and 2 have stated that considering the performance of respondent No. 3 in implementation of PMGSY schemes, respondent No. 3 has been transferred to and posted at Mangaldoi since many schemes under PMGSY are being implemented in Mangaldoi. 10. On 05.03.2014, this Court noted that one of the grounds on which transfer order was passed is that the petitioner has no experience to execute schemes under PMGSY and therefore, respondent No. 3 who has considerable experience in implementation of such schemes has been posted at Mangaldoi on promotion. Since the affidavit filed by respondent Nos. 1 & 2 does not disclose whether PMGSY schemes are being executed at Karimganj, the said respondents were directed to file an affidavit in this regard. 11. Thereafter, respondent Nos. Since the affidavit filed by respondent Nos. 1 & 2 does not disclose whether PMGSY schemes are being executed at Karimganj, the said respondents were directed to file an affidavit in this regard. 11. Thereafter, respondent Nos. 1 and 2 have filed an additional affidavit wherein it is stated that there is no PMGSY scheme under Karimganj BRC, PWD where the works relate to construction of border roads. Since petitioner has good experience in border roads works, he has been transferred to Karimganj BRC. On the other hand, respondent No. 3 had gathered considerable experience in execution of PMGSY schemes while he was serving as Executive Engineer in Kokrajhar Rural Road Division and Bongaigaon Rural Road Division. 12. Respondent No. 3 in his affidavit has stated that following issuance of the impugned notification dated 05.02.2014, he joined as Superintending Engineer at Mangaldoi but petitioner made himself unavailable and did not hand over charge. When this was conveyed to the higher authority, notification dated 10.02.2014 was issued by the Deputy Secretary to the Government of Assam, PWD(Roads) allowing respondent No. 3 to assume charge of the Office of Executive Engineer, Mangaldoi Road Circle on 11.02.2014 in case the petitioner failed to handover charge on 11.02.2014. Following the notification dated 10.02.2014, respondent No. 3 joined on 11.02.2014. 13. Petitioner has filed affidavits-in-reply to the affidavits filed by the respondents reiterating the stand taken in the writ petition as well as in the additional affidavit. 14. Heard Mr. R. Dubey, learned counsel for the petitioner and Mr. J. Patowary, learned Standing Counsel, PWD (Roads), who has produced the record. Also heard Mr. Sheikh Mukhtar, learned counsel for respondent No. 3. 15. Submissions made by learned counsel for the parties are on pleaded lines and therefore, the Court is of the view that a detailed reference to the submissions made may not be necessary. It may however, be pointed out that Mr. Dubey, learned counsel for the petitioner, by referring to the affidavits filed would contend that there is an attempt by the respondents to improve upon the grounds of transfer by subsequent filing of affidavits. He submits that such a course of action is not permissible in view of the law laid down by the Apex Court in Mohinder Singh Gill Vs. Chief Election Commissioner reported in (1978) 1 SCC 405 . He submits that such a course of action is not permissible in view of the law laid down by the Apex Court in Mohinder Singh Gill Vs. Chief Election Commissioner reported in (1978) 1 SCC 405 . He also submits that an employee’s transfer on the basis of non-existent fact would tantamount to malice in law and has referred to the decision in Somesh Tiwari v. Union of India reported in (2009) 2 SCC 592 . On the other hand, Mr. J. Patowary, learned Standing Counsel has questioned the very maintainability of the writ petition in the absence of the local MLA against whom allegations of malafide have been levelled. He also submits that petitioner cannot seek enforcement of office memorandum in a proceeding under Article 226 of the Constitution of India. In support of his submission, Mr. Patowary has referred to various decisions of this Court as of well as of the Apex Court. 16. Mr. Sheikh Mukhtar, learned counsel for respondent No. 3 submits that following the transfer order respondent No. 3 has joined his promoted post and if the status quo order is not vacated or modified, he would not receive his salary, thus prejudice would be caused to him. 17. Submissions made have been considered. 18. I have also perused the record produced by the learned Standing Counsel. 19. There is no dispute to the proposition of law canvassed by the learned counsel for both the sides. The application of law would however depend on the facts and circumstances of each individual case. There cannot be any application of law in a vacuum divorced from the factual context of a case. While learned Standing Counsel is correct in contending that a Government employee cannot seek enforcement of Government guidelines governing transfer in a proceeding under Article 226 of the Constitution of India, at the same time it is also true that these guidelines are framed by the Government itself to put in place a mechanism to deal with situations where transfer of a Government servant becomes necessary before he completes two years in a particular station. Therefore, the Government cannot say that it would not follow its own guidelines. Government cannot take the plea that since such guidelines are not enforceable in a Court of law at the instance of the Government employee, therefore, it would not be bound by such guidelines. 20. Therefore, the Government cannot say that it would not follow its own guidelines. Government cannot take the plea that since such guidelines are not enforceable in a Court of law at the instance of the Government employee, therefore, it would not be bound by such guidelines. 20. Having said that, the record produced by the learned Standing Counsel may now be perused. 21. It is seen that as per office noting dated 01.02.2014 addressed to the Deputy Secretary, it was noted that one Sri Tridip Doimary and 31 others had submitted one petition seeking transfer of the petitioner from Mangaldoi. They alleged that the petitioner was irregular in attending office and refuses to meet the public during office hours in the office. He hesitated to visit Udalguri district as it was an extremist affected district because of which the developmental works were affected. There is a reference to another representation submitted by one Md. Absar Ali and 17 other contractors requesting transfer of the petitioner. They alleged that petitioner was irregular in attending office, for which, the contractors faced difficulty due to unnecessary delay in disposal of contractors bills/files etc. 22. The Deputy Secretary in his note dated 03.02.2014 to the Commissioner and Special Secretary stated that petitioner did not have experience of working in PMGSY works. Referring to the complaints received, he stated that petitioner demanded "some ransom" while disposing the files of the contractors. It was therefore suggested that petitioner may be transferred to Karimganj BRC to utilize his experience in border roads works and to post a new officer having experience in PMGSY works in Mangaldoi Road Circle. It was however pointed out that since petitioner has not completed 2 years in the same posting, approval of the Chief Minister would be required. 23. As already noticed above, the impugned notification was issued on 05.02.2014. 24. The record reveals that the Commissioner and Special Secretary put his signature to the proposal on 04.02.2002 but approval of the Chief Minister was received only on 23.02.2014. In the meanwhile, this Court on 12.02.2014 had passed the status quo order. 25. When this Court was in seisn of the matter and had passed a status quo order on 12.02.2014, the Commissioner and Special Secretary ought to have brought this fact to the notice of the Chief Minister before he granted approval on 23.02.2014. In the meanwhile, this Court on 12.02.2014 had passed the status quo order. 25. When this Court was in seisn of the matter and had passed a status quo order on 12.02.2014, the Commissioner and Special Secretary ought to have brought this fact to the notice of the Chief Minister before he granted approval on 23.02.2014. Since this approval was granted after the transfer notification was put to challenge on the ground that it did not have the approval of the Chief Minister though it was required being a transfer within 2 years, the approval granted by the Chief Minister on 23.02.2014 would be of no legal consequences. 26. Another disturbing feature which emerges from the record is that without making any verification of the two complaints made against the petitioner, those two complaints were taken into consideration while forwarding the proposal for transfer of the petitioner. The Deputy Secretary in his note stated that it was alleged that petitioner demanded "some ransom" while disposing the files of contractors. Firstly, this is not even the allegation of the complainants and secondly, the allegation is extremely serious as to cast aspersions on the integrity of the petitioner. It would really be very unsafe to act on complaints without proper verification when the allegations are so serious in nature. 27. Thus it is quite clear that irrelevant factors were taken into consideration while issuing the impugned transfer order. In the circumstances, as indicated above, Court is of the view that respondent No. 1 should reconsider the impugned order of transfer of the petitioner to ensure that administrative decisions like transfer are taken only in the public interest and nothing else. 28. Having regard to the above, matter is remanded back to the first respondent who shall reconsider the transfer order of the petitioner dated 05.02.2014 and pass fresh order(s) in accordance with law within a period of 30(thirty) days from the date of receipt of a certified copy of this order. 29. Till such reconsideration and decision, status quo order passed by this Court on 12.02.2014 shall continue. 30. Writ petition is disposed of. 31. Record produced by learned Standing Counsel is returned back.