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2016 DIGILAW 168 (GAU)

Samsul Hussain v. State of Assam

2016-03-08

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. S.B. Rahman, learned counsel for the petitioner as well as Ms. A. Verma, learned counsel for Respondent Nos. 1, 2 and 3. Also heard Ms. S. Sarma, learned counsel representing Respondent No. 4. 2. The transfer of the petitioner as Treasury Officer to Maibong Sub Treasury at Dima Hasao District is the bone of contention in the present proceedings. The said transfer was made by Notification dated 23.07.2015 issued under the hand of the Secretary to the Government of Assam, Finance (Estt.-B) Department. Interference of the transfer order is sought primarily on the ground that the 11 year old son of the petitioner is physically impaired and suffers from Locomotor disability to the extent of 80%. The petitioner contends that as a care giver of the disabled child his displacement to Maibong from Guwahati would operate as a hindrance in the rehabilitation process of the child. On this ground a prayer is made for exempting the petitioner from the routine exercise of transfer from Guwahati to Maibong. In support of his contention, the petitioner relies upon the Office Memorandum dated 06.06.2014, issued by the Government of India in the Ministry of Personnel, Public Grievance and Pensions which sets out the policy of the Government of India with regard to posting of Government employees who have differently abled dependants. The petitioner submits that although this Office Memorandum of the Government of India has not been adopted by the State of Assam, at least the spirit of the said Notification/Office Memorandum can well be taken into consideration while posting the petitioner to another place out of Guwahati. 3. In the earlier round of litigation i.e. WP(C) 4812/2015 the said order of transfer was also put to challenge. A clear stand was taken by the State Respondents to the effect that the aforesaid Office Memorandum dated 06.06.2014 was yet to be adopted by the Government of Assam and, as such, the policy laid down in the said Memorandum cannot come to the aid of the petitioner. The writ petition was disposed of permitting the petitioner to make a fresh representation before the Secretary to the Government of Assam, Finance Department with further direction to the authority concerned to dispose of the same by a speaking order. The writ petition was disposed of permitting the petitioner to make a fresh representation before the Secretary to the Government of Assam, Finance Department with further direction to the authority concerned to dispose of the same by a speaking order. Until disposal of the representation, the operation of the Transfer Order dated 23.07.2015 was directed to be kept in abeyance, in so far as the petitioner was concerned. 4. The petitioner is now before this Court challenging the Order dated 28.08.2015 which had been passed pursuant to his representation as directed by the Court in WP(C) 4812/2015. In the said Order dated 28.08.2015 the physical impairment of the petitioner's son was taken note of. The ground for issuing the transfer order was also indicated to the effect that there were a large number of vacancies of FAO in various Treasuries, Sub Treasuries, Directorates and subordinate offices. In the rationalisation exercise undertaken, transfers have been made in the overall interest of the public at large. 5. Mr. Rahman, learned counsel for the petitioner submits that in view of the Office Memorandum of the Government of India and having regard to the fact that the petitioner's disabled son is undergoing intensive medical treatment, it may not be possible to displace his son from Guwahati as he requires constant medical attention. On the other hand Ms. A. Verma submits that the said Office Memorandum of the Government of India may not be taken as a fulcrum for interference, in as much as, by taking recourse to the said Office Memorandum, the petitioner may perhaps seek exemption from transfer at every point of time. 6. Admittedly the Transfer Order dated 23.07.2015 do not stand vitiated on grounds that it offends the professed norms governing transfer of an employee. Although sympathy cannot be pleaded for interfering with a transfer order, the fact remains that while disposing of the representation vide impugned order dated 28.08.2015, the respondent authority did not take into consideration the spirit of the Office Memorandum of the Government of India. No doubt that the said Office Memorandum has not been adopted by State of Assam but the avowed beneficial guidelines in the matter of transfer of a Government employee who have differently abled dependants ought to have been taken into consideration. No doubt that the said Office Memorandum has not been adopted by State of Assam but the avowed beneficial guidelines in the matter of transfer of a Government employee who have differently abled dependants ought to have been taken into consideration. Undoubtedly, the same can well be taken into consideration in a fresh exercise in the event the petitioner makes an application/representation to that effect. 7. It would be in the fitness of things that in order to show bona fide, the petitioner needs to report at Maibong Sub Treasury and after joining may file a representation before the competent authority in that regard for a re-transfer to Guwahati. To maintain a balance between the administrative order of transfer and the spirit of the Office Memorandum of the Government of India, it would be appropriate for the State Respondents to have a re-look into the matter. For the present, the Order of Transfer dated 23.07.2015 as well as the Office Order dated 28.08.2015 is not interfered with by this Court. It is left open to the petitioner to make a representation in that regard after joining as Treasury Officer at Maibong Sub Treasury. As and when such representation is made it will be a necessary obligation on the part of the State Respondents to dispose of the same within a period of three weeks therefor, having regard to the spirit of the Office Memorandum dated 06.06.2014. 8. In view of the above, this writ petition stands disposed of, allowing the petitioner to make suitable representation as indicated above.