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2016 DIGILAW 415 (GAU)

Manash Das v. State of Assam

2016-05-12

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER Manojit Bhuyan, J. It is too well settled in law that transfer of an employee is in the domain of the employer. Interference of the Court would be warranted if the transfer order is vitiated by element of arbitrariness, mala fide or in violation of the statutory rules. On this note, the facts of the present case may be noticed. 2. The petitioner is an officer of Assam Civil Service cadre and is presently holding the post of Deputy Director, WPT & BC Department, Government of Assam. On 7th September, 2015 while he was discharging function as Extra Assistant Commissioner, Salbari he was transferred to the present post. About five months later by subsequent Notification dated 20.2.2016, he along with 15 other officers were transferred out to various places and in so far as the petitioner is concerned, he was transferred and posted as Sub-divisional Officer (Sadar), Dibrugarh. This order of transfer is assailed in the present application. 3. The primary ground of challenge is that the said order of transfer had not been issued in public interest and also suffered from non-application of mind. 4. Mr. B.K. Mahajan, learned counsel representing the petitioner contends that in February, 2016 the petitioner along with others were deputed to undergo training on EVM & VVPAT at the India International Institute of Democracy and Election Management (IIIDEM), of the Election Commission of India, New Delhi. According to the petitioner, the training imparted to him will have no meaning if he is transferred out from the Kamrup (M) District. Further contention is that the place where he has been transferred i.e. Dibrugarh is not one of the Districts where there is use of the new system of voting. It is contended that three other officers had also been transferred to Dibrugarh and posted as Sub-divisional Officer (Sadar) and, as such, there would be no inconvenience if the order of transfer is not given effect to. The petitioner also contends that after completion of training, in his turn, he has been imparting training to Assembly Level Master Trainer in the Kamrup (M) Assembly Constituency and in case he is transferred to Dibrugarh the same would cause inconvenience and hindrance to the training programme. The petitioner also contends that after completion of training, in his turn, he has been imparting training to Assembly Level Master Trainer in the Kamrup (M) Assembly Constituency and in case he is transferred to Dibrugarh the same would cause inconvenience and hindrance to the training programme. According to the petitioner, an anomalous situation had arisen, in that, whereas in one hand the District Election Officer had sent the petitioner for training, on the other hand, the respondent authorities had issued the order of transfer to Dibrugarh where such new voting system has not been introduced. The additional ground taken is that the petitioner had not only been appointed as Nodal Officer of the Strong Room Cell at Guwahati but also been given the task of performing duties as a Constituency Magistrate of 51 Jalukbari LAC. 5. It appears from the above that the primary ground of challenge to the order of transfer pertains to events prior to the Assembly Election held in the State of Assam. 6. Mr. H.K. Mahanta, learned counsel representing the respondent nos. 1 and 2 submits that the transfer of the petitioner to Dibrugarh is wholly in public interest and the same had been issued after receiving the approval of the Chief Minister of the State of Assam on 6.2.2016. In the same breath, Mr. Mahanta submits that the petitioner has not alleged any arbitrariness or mala fide in the issuance of the order of transfer. Also, nothing has been brought on record to establish that the said order of transfer stands vitiated on account of any violation of the statutory rules. Reference is made to the affidavit-in-opposition filed on behalf of respondent nos. 1 and 2. At paragraph 3 thereof, it is indicated that the petitioner along with 15 others have been transferred in order to fill up the vacant post of Returning Officer/Assistant Returning Officer in different districts having regard to the General Election, 2016 in Assam. The said paragraph also indicates that the Election Commission of India have notified the post of Sub-divisional Officer (Sadar), Dibrugarh as an Assistant Returning Officer in the Legislative Constituency of Dibrugarh. The office of the Returning Officer/Assistant Returning Officer are required to be filled up prior to the Assembly Election, 2016 and they are required to carry out the statutory election duties. The office of the Returning Officer/Assistant Returning Officer are required to be filled up prior to the Assembly Election, 2016 and they are required to carry out the statutory election duties. The ground of transfer of the petitioner along with others have been shown that it was because of shortage of officers, who are presently involved in the verification work of NRC, the officers posted in different Directorates and Assam Secretariat at Guwahati have been transferred and posted to discharge function as the Returning Officer/Assistant Returning Officer in the respective districts. Mr. Mahanta also submits that save and except the petitioner herein, all other persons who were transferred under the common Notification had joined their place of posting. Urgency is expressed that the petitioner is required to join at Dibrugarh, inasmuch as, the counting of votes pursuant to the election in Assam would commence on 19.5.2016. As such, to obviate inconvenience, the petitioner is required to join at Dibrugarh forthwith. 7. The rival contentions have been noticed. The materials available have also been perused. Conspicuously, the element of arbitrariness, allegation of mala fide and/or that the transfer order stands vitiated on account of violation of any statutory norms or rules is not perceived. The grounds assigned by the respondent authorities, as apparent from the affidavit-in-opposition, makes out a sufficient case that the order of transfer had been issued in public interest. Further, the transfer of the petitioner within a period of five months also found approval of the Chief Minister of the State of Assam. There is no allegation in the writ petition that the official status, career prospect and the secured emoluments of the petitioner have stood adversely affected by the transfer order. It is well settled in law that a Government servant cannot dis-obey the transfer order and must join the place of duty and only thereafter he can file a representation highlighting his grievances and for seeking a change in the transfer order. This is not the case here. As alluded to above, the ground shown is that the petitioner had received training on EVM & VVPAT and as Master Trainer and, in his turn, is imparting training to others. Statements have been made that he is presently discharging duties as a Constituency Magistrate and/or a Nodal Officer of the Strong Room Cell. This is not the case here. As alluded to above, the ground shown is that the petitioner had received training on EVM & VVPAT and as Master Trainer and, in his turn, is imparting training to others. Statements have been made that he is presently discharging duties as a Constituency Magistrate and/or a Nodal Officer of the Strong Room Cell. This alone would not constitute sufficient ground for the petitioner to disobey the transfer order. To reiterate, strong grounds have been assigned by the respondent authorities and in the opinion of this Court the same are in the realm of public interest. 8. The petitioner has not been able to make out a case for interfering with the order of transfer. This Court is also aware of its scope and power to entertain a case involving transfer of an employee, having regard to the law laid down by the Apex Court in a catena of decisions. The scope and power being limited and the petitioner not being able to make out a case warranting interference of this Court, this writ petition warrants dismissal, which is accordingly done. Writ Petition stands dismissed. No costs.