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2015 DIGILAW 432 (GAU)

Purnimaha Zarika v. State of Assam & Ors.

2015-04-07

UJJAL BHUYAN

body2015
1. This order will dispose of both WP(C) No. 6513 of 2014 and WP(C) No. 990 of 2015. 2. Heard Mr. D. Deka, learned counsel for the petitioner in WP(C) No. 6513 of 2014 and Mr. U.K. Das, learned counsel for the petitioner in WP(C) No. 990 of 2015. Also heard Mr. B.K. Sharma, learned Standing Counsel, Social Welfare Department, who has produced the relevant file. 3. Both the petitioners are serving as Child Development Project Officers (CDPO) in the Social Welfare Department, Government of Assam. 4. Smt. Purnima Hazarika, petitioner in WP(C) No. 6513 of 2014, was transferred from Balipara ICDS Project, Sonitpur to Tezpur in the same district as Probation Officer. Alleging that the said transfer was within the tenure period of 2 years of the last transfer order and without having prior approval of the Chief Minister, Smt. Purnima Hazarika moved this court by filing WP(C) No. 5948 of 2014. This court disposed of the said writ petition vide order dated 19.11.2014, by directing the departmental Commissioner and Secretary to take on board the representation stated to have been filed by the petitioner against her transfer order and to dispose of the same by passing a speaking order. Thereafter, the departmental Commissioner and Secretary passed the speaking order dated 28.11.2014, stating that petitioner was transferred within the district (Sonitpur district) and though it was before completion of the normal tenure period, approval of the Chief Minister was not required as the transfer was within the same district. It was further stated that service of the petitioner as CDPO at Balipara was not essential and, therefore, she was assigned a new post within the district. On the same date, the impugned notification dated 28.11.2014 was issued by the departmental Commissioner and Secretary, modifying the posting of the petitioner from Tezpur as CDPO at Rangapara ICDS Project within Sonitpur district. By the same order, Smt. Rina Hatimota, Assistant CDPO, Baghmara ICDS Project was promoted and posted as CDPO, Balipara ICDS Project. 5. By filing the present writ petition, Smt. Purnima Hazarika has challenged the legality and validity of the aforesaid notification dated 28.11.2014. This court by order dated 10.12.2014 directed maintenance of status quo as regards the place of posting of the petitioner. Thereafter, notice was issued vide order dated 19.1.2015 and the status quo order was directed to be continued. 6. By filing the present writ petition, Smt. Purnima Hazarika has challenged the legality and validity of the aforesaid notification dated 28.11.2014. This court by order dated 10.12.2014 directed maintenance of status quo as regards the place of posting of the petitioner. Thereafter, notice was issued vide order dated 19.1.2015 and the status quo order was directed to be continued. 6. The departmental Commissioner and Secretary thereafter issued notification dated 10.2.2015, staying the transfer of Smt. Purnima Hazarika, vide notification dated 28.11.2014. Following the same, Smt. Rina Hatimota was transferred and posted as CDPO, Sootea ICDS Project in the same district. This has been challenged by Smt. Rina Hatimota by filing WP(C) No. 990 of 2015. Notice was issued on 23.2.2015 and both the writ petitions were directed to be listed together. 7. Insofar the first writ petition is concerned, this court had earlier directed the departmental Commissioner and Secretary to look into the grievance of the petitioner (Smt. Purnima Hazarika) and thereafter, to pass appropriate order(s). Accordingly, the departmental Commissioner and Secretary examined the request of the petitioner, but declined to accept the same for the reasons mentioned in the speaking order dated 28.11.2014. Thereafter, she was transferred and posted as CDPO, Rangapara in the same district of Sonitpur. 8. Neither violation of any statutory rule nor any mala fide is discernible from the impugned order as well as from the averments made in the writ petition. In view of the explanation given by the departmental Commissioner and Secretary in the speaking order, impugned transfer cannot also be said to be arbitrary or unreasonable. Just because, petitioner has been transferred before completion of her normal tenure it does not mean that such transfer would be arbitrary or unreasonable. The departmental Commissioner and Secretary has explained that since the transfer is within the same district, that too, at a short distance approval of the Chief Minister may not be required. In any case, such requirements are part of the administrative instructions, which are not legally enforceable at the instance of the affected employee. 9. Coming back to the second case, filing of the same appears to be totally unwarranted as the notification dated 10.2.2015 has been issued only as a temporary measure in view of the order passed by this court 19.1.2015. 10. Relevant file produced by the learned Standing Counsel for the Social Welfare Department has been perused. 11. 9. Coming back to the second case, filing of the same appears to be totally unwarranted as the notification dated 10.2.2015 has been issued only as a temporary measure in view of the order passed by this court 19.1.2015. 10. Relevant file produced by the learned Standing Counsel for the Social Welfare Department has been perused. 11. From the note-sheet as well as from the documents placed in the file, it is seen that Sri Bhimananda Tanti, Deputy Speaker, Assam Legislative Assembly had written to the Social Welfare Minister on 29.10.2014 regarding transfer of Smt. Purnima Hazarika. The Social Welfare Minister was requested to exercise his good office for taking necessary action to review the transfer order of Smt. Purnima Hazarika and to allow her to continue at Balipara. On the same date, i.e., on 29.10.2014, Sri Rajen Borthakur, MLA, Tezpur, also wrote to the Social Welfare Minister requesting him to stay the transfer of Smt. Purnima Hazarika so that she could continue her service at Balipara ICDS Project. Similar letters were written by both the Deputy Speaker and the MLA to the departmental Commissioner and Secretary on the same day. In his letter to the departmental Commissioner and Secretary, the Deputy Speaker referred to his telephonic discussion he had with him on the previous day. Not to be left behind, it appears that Smt. Rina Hatimota, petitioner in WP(C) No. 990 of 2015, approached Sri Tanka Bahadur Rai, Minister of Planning and Development, Law and PPG, Assam, who, in turn wrote to the departmental Commissioner and Secretary on 7.11.2014, stating that though Smt. Rina Hatimota was released from East Jorhat to join at Balipara on transfer, the incumbent at Balipara did not hand over charge to her. It was therefore, stated that Smt. Rina Hatimota may be allowed to take over the charge unilaterally. 12. Ministers and MLAs, or for that matter the Deputy Speaker, being public representatives, can certainly convey the grievance of the public relating to transfer and posting of public servants before the departmental authorities as well as before the Minister-in-charge, which is a part of the democratic polity and no fault can be found in the ventilation of public grievance by the public representatives. But what is disturbing as can be seen from the relevant file is that both the 2 writ petitioners, being Government servants, had bypassed the lawful service hierarchy in the department and had sought interference of the Deputy Speaker, Minister and MLA unconnected with the department to further their service interest. 13. Public approaching the public representatives ventilating their grievance regarding posting of Government servants or for such other matters is one thing and serving Government servants approaching politicians or public representatives in connection with their service related issues is altogether another thing. 14. In the Assam Civil Services (Conduct) Rules, 1965, which deals with conduct of Government servants, a Government servant has been defined to mean any person appointed by the Government to any civil service or post in connection with the affairs of the State. Under rule 22 of the Assam Civil Services (Conduct) Rules, 1965, no Government servant shall bring or attempt to bring any political or other influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. 15. When one is in Government service he or she has to maintain and respect the hierarchy of the service. The same cannot be bypassed or attempted to be broken by bringing in political or any outside influence. Approaching politicians and using their power and position to influence decision making of the higher authorities will certainly amount to breach of conduct under the aforesaid Rules. 16. This is an aspect which the respondents may consider and issue general notification so that it is made clear to the Government servants that bringing any political or outside influence to influence decision making in the department is not acceptable and would be construed as a breach of conduct and discipline. In this connection, respondents may take up the matter with the Personnel Department or such other Department as may be considered necessary. 17. Accordingly and in view of above, this court finds no merit in both the writ petitions, which are dismissed. 18. The record produced by Mr. B.K. Sharma, learned Standing Counsel, is returned back. A copy of this order may also be furnished to Mr. Sharma for doing the needful.