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2016 DIGILAW 529 (GAU)

Bandana Thakuria v. State of Assam

2016-06-08

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Michael Zothankhuma, J. Heard Mr. N.J. Khataniar, learned counsel for the petitioners. Also heard MR. B.D. Konwar, learned Senior counsel assisted by Ms. K. Mahanta appearing for respondent No.6. Also heard Mr. P Hazarika, learned counsel for Health Department. 2. Both these cases are having similar facts and are accordingly disposed off by this common order. 3. The petitioner's case is that she was initially appointed under the Regulation 3(f) of the Assam Public Service Commission (Limitation of offence) Regulation 1951 (in short "1951 Regulation") and posted at Silchar Medical College vide notification dated 06.09.2014. The petitioner was thereafter posted at Guwahati Medical College on 26.11.2014. The petitioner was thereafter appointed on a regular basis as Demonstrator of Microbiology on the recommendation of the APSC vide notification dated 03.02.2016. The notification dated 03.02.2016 also stated that the petitioner was appointed regularly w.e.f. the date of recommendation of the APSC, 14.02.2015 and posted at Jorhat Medical College (JMC). 4. The petitioner's counsel submits that the petitioner and her husband were both working in the GMC prior to the appointment of the petitioner as Demonstrator of Microbiology. The petitioner's counsel submits that vide another notification dated 03.02.2016 the respondent Nos. 6 and 7 were appointed as Demonstrator of Microbiology vide notification dated 03.02.2016 and posted at Guwahati Medical College. The petitioner's counsel submits that the posting of the respondent Nos. 6 and 7 to the GMC should be set aside and the posting of the petitioner to JMC should also be set aside. 5. The petitioner's counsel submits that as per the OM dated 04.02.2016, which pertains to the transfer policy to regulate transfer and posting of the teaching faculty of Government Medical Colleges under Health and Family Welfare Department, the petitioner could not have been transferred to JMC and she should have been posted to GMC in view of clause 3.2, 3.3 and 4.3 of the OM dated 04.02.2016. Clause 3.2, 3.3, 4.3 and the Medical Clause Zone are reproduced below : 3.2. Transfers will be linked with promotion from one grade to another, or after completion of 7 years of service of the incumbent in the same institution, whichever is earlier. 3.3. Wherever both husband and wife are serving in particular Zone, they will be posted in the same institution as far as possible, depending upon vacancies and other eligibility conditions. 4.3. Transfers will be linked with promotion from one grade to another, or after completion of 7 years of service of the incumbent in the same institution, whichever is earlier. 3.3. Wherever both husband and wife are serving in particular Zone, they will be posted in the same institution as far as possible, depending upon vacancies and other eligibility conditions. 4.3. As far as possible, all posts in the A1, B1 and C1 medical colleges will be filled up only through promotion. Similarly, upon fresh recruitment, faculty members will be posted in A2/A3, B2 and C2. Zone Name of medical college & hospital Sub-zone Code A Gauhati Medical College & Hospital, Guwahati A1 Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta A2 Tezpur Medical College & Hospital, Tezpur A3 B Assam Medical College & Hospital, Dibrugarh B1 Jorhat Medical College & Hospital, Jorhat B2 C Silchar Medical College & Hospital, Silchar C1 Assam Hills Medical College & Research Institute, Diphu C2 6. The petitioner's counsel submits that as the petitioner was earlier posted in the GMC while being employed under Regulation 3(f) of the 1951 Regulation and as her husband was working in the GMC as Assistant Professor in the Department of Anesthesiology and Critical Care, the petitioner should have been posted in the same institution as per Clause 3.3. The petitioner's counsel further submits that GMC being in Zone A1, the respondent Nos. 6 and 7 could not have been posted at GMC in violation of Clause 4.3. 7. Mr. P Hazarika, counsel for the Health Department submits that as the petitioner's appointment was a fresh appointment, the OM dated 04.02.2016 is not applicable to the petitioner's case. He submits that the petitioner became a serving member in the regular cadre of Demonstrator prior to the issuance of the OM Dated 04.02.2016 and accordingly, the petitioner being a fresh appointee, the petitioner has no right to invoke clause 3.2, 3.3 and 4.3 of the OM dated 04.02.2016. He also submits that the implementation of clause 3.3 and 4.3 is not mandatory and in fact it only requires the authorities to comply with the same as far as possible. 8. Mr. B.D. Konwar, learned Senior counsel for the respondent Nos. 6 and 7 submits that the OM dated 04.02.2016 is not applicable to the petitioner's case. He also submits that the implementation of clause 3.3 and 4.3 is not mandatory and in fact it only requires the authorities to comply with the same as far as possible. 8. Mr. B.D. Konwar, learned Senior counsel for the respondent Nos. 6 and 7 submits that the OM dated 04.02.2016 is not applicable to the petitioner's case. He submits that the petitioner has no right to remain in GMC as the petitioner has been newly appointed to the post on a regular basis vide notification dated 03.02.2016. He also submits that the petitioner's service under Regulation 3(f) of the 1951 Regulation can have no relevance in the present case as the period of service under Regulation 3(f) cannot be counted for any purpose by the respondent authorities. 9. Mr. B.D. Knowar, learned Senior Counsel submits that the petitioner having been appointed only on 03.02.2015, the petitioner cannot claim that any right of her's has been violated as the OM dated 04.02.2016, was not applicable at the time the petitioner was freshly appointed to the regular cadre. 10. I have heard the learned counsel for the parties. Though the petitioner's counsel submits that the OM dated 04.02.2016 would be applicable to the petitioner in view of the OM coming into force w.e.f. 01.01.2016, I am not inclined to accept the said submission as the said principle would have to be applied also to the petitioner's appointment order dated 03.02.2016, which has been given retrospective effect from 14.12.2015. 11. If the petitioner's appointment as Demonstrator on regular basis is to be effective from 14.12.2015, then the OM dated 04.02.2016 (transfer policy), would have come into force only w.e.f. 01.02.2016, the same would not be applicable to the petitioner. 12. 11. If the petitioner's appointment as Demonstrator on regular basis is to be effective from 14.12.2015, then the OM dated 04.02.2016 (transfer policy), would have come into force only w.e.f. 01.02.2016, the same would not be applicable to the petitioner. 12. With regard to the petitioner's counsel contention that the petitioner was earlier posted in GMC prior to her appointment on regular basis vide notification dated 03.02.2016 and accordingly, the petitioner's place of posting prior to the notification dated 03.02.2016 should have been considered by posting her in the same place, I am of the view that the said submission of the petitioner's counsel cannot be accepted, in view of the fact that the services rendered by the petitioner to a post appointed under Regulation 3(f) of the 1951 Regulation, cannot be counted for the purpose of seniority, as held by the Division Bench of this Court in the case of Anup Kumar Das v. Sanjib Kakati, reported in 2000 (1) GLT 429 as such, the petitioner's service under Regulation 3(f) of the 1951 Regulation cannot be counted for service, no other benefit can be given to the petitioner on account of her alleged posting prior to the petitioner's appointment to the regular cadre of Demonstrator vide notification dated 03.02.2016. 13. The facts of the case show that the respondent Nos. 6 and 7 were appointed to the cadre of Demonstrator on 03.02.2016. The OM dated 04.02.2016 is the transfer policy issued after the appointment of the respondent Nos. 6 and 7. Though the transfer policy came into effect from 01.02.2016, the same cannot be made applicable to the respondent Nos. 6 and 7 due to the fact that they were appointed prior to the OM dated 04.02.2016. At the time of the appointments of the petitioner and the respondent Nos. 6 and 7, the OM dated 04.02.2016, though it has been given retrospective effect from 01.02.2016, was not in existence and as such, the place of postings given in the appointment orders of the parties could not be said to be in violation of the transfer policy given in the OM dated 04.02.2016. 14. In view of the above, the petitioners counsel submission that the posting of the petitioner and the respondent Nos. 6 and 7 would have to be governed by the OM Dated 04.02.2016 cannot be accepted. 14. In view of the above, the petitioners counsel submission that the posting of the petitioner and the respondent Nos. 6 and 7 would have to be governed by the OM Dated 04.02.2016 cannot be accepted. The writ petition is accordingly dismissed as being devoid of any merit. However, the state respondents should consider whether the petitioner can be posted in the place of posting of her husband, as it would be in the best interest of the petitioner and her husband and in keeping with the transfer policy given in the Clause 3.3, which is not applicable to the petitioner or the private respondents. The hardship caused to the petitioner's married life would be immense in view of the transfer policy, which was issued vide notification dated 04.02.2016. The petitioner would have to continue in the zone in which she has been posted until and unless she is promoted. The Government should have a re-look at the policy so that married couples who have been appointed and posted in different zones, prior to the transfer policy, may be exempted from the said transfer policy and a provision is inserted to post them in the same zone/institutions as far as possible. 15. It may also be noticed that the Supreme Court in the case of Union of India and Ors. v. SL Abbas, reported in (1993) 4 SCC 357 has held that the guidelines issued by the Government on the subject of transfer does not confer upon the Government employee a legally enforceable right unless the transfer order is vitiated by malafide or is made in violation of any statutory provision. 16. In the present case, the petitioner has not impleaded any respondent by name so as to prove the charge of malafide against any of the respondents. In view of the reasons stated above and the fact that this Court has held that the OM dated 04.02.2016 (transfer policy) is not applicable to the case of the petitioner and the private respondents, the writ petitions are accordingly dismissed, as no infirmity is found in the impugned orders issued by the respondents. Any interim order passed earlier stands vacated.