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2016 DIGILAW 891 (GAU)

Amitabh Rajkhowa v. State of Assam

2016-09-27

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Mr. Michael Zothankhuma, J. Heard Mr. D. Das, Senior counsel for the petitioner. Also heard Mr. C. Choudhury, AG, Assam as well as Mr. K. N. Choudhury, Senior counsel, appearing for the respondent No. 5. 2. This writ petition has been filed, praying for cancellation of the transfer order dated 23.08.2016, by which the petitioner has been transferred from the post of CEO, Zilla Parishad, Nagaon to the post of Joint Secretary to the Government of Assam at Dispur. The petitioner's counsel submits that prior to the impugned transfer order dated 23.08.2016, issued by the State respondents, the petitioner had been promoted and posted to the post of CEO, Zilla Parishad, Nagaon, vide notification dated 17.08.2016. The petitioner's counsel submits that the petitioner was transferred to the post of Joint Secretary, Dispur only one week later, without there being any reason given for modification of the earlier transfer order dated 17.08.2016. The petitioner's counsel submits that modification of the petitioner's transfer order dated 17.08.2016, by way of the new transfer order dated 23.08.2016, should be set aside as per the law laid down in the case of Zakir Hussain v. State of Assam and others, reported in 2001 (3) GLT 67. The petitioner's counsel also submits that the Transfer Policy/guidelines, laid down by the State Government, by way of OM dated 06.08.2013, has not been followed by the State respondents while issuing the impugned transfer order dated 23.08.2016 and in that view of the matter, the impugned transfer order should be set aside. 3. Mr. C. Choudhury, AG, Assam, submits that the petitioner has not come to the Court with clean hands and in that view of the matter, the petitioner's writ petition should be dismissed. He also submits that several officers have been transferred vide the impugned transfer order dated 23.08.2016 and as such, the impugned transfer order has not singled out the petitioner for transfer. He also submits that the guideline for transfer, as enumerated in the OM dated 06.08.2013, has been complied with, inasmuch as, the Chief Minister has given his approval to the transfer of the petitioner from the post of CEO, Zilla Parishad, Nagaon to the post of Joint Secretary to the Government of Assam at Dispur. Mr. C. Choudhury submits that the petitioner has no right to pray for setting aside the impugned transfer order. 4. Mr. Mr. C. Choudhury submits that the petitioner has no right to pray for setting aside the impugned transfer order. 4. Mr. K. N. Choudhury, counsel for the respondent No. 5, submits that the petitioner has not come to Court with clean hands as can be seen from the pleadings made out in the writ petition. He submits that the petitioner has deliberately concealed certain facts and orders of this Court. He also submits that the petitioner has been posted at Nagaon since 2010 and except for serving for 8 months in 2014, when he was posted to Sibsagar, as per the guidelines laid down in the Model Code of Conduct by the Election Commission, with regard to the posting of officers during the parliamentary election, the petitioner has continued to remain at Nagaon till date. He also submits that there has been no violation of the guideline for transfer. He also submits that due to the petitioner not coming to Court with clean hands, the writ petition is liable to be dismissed and contempt petition should be initiated against him, as per the law laid down in the case of K.D. Sharma v. Steel Authorities of Limited India and others, reported in (2008) 12 SCC 481. 5. I have heard the learned counsels for the parties and perused the official records that have been produced today. 6. The official records reflects the fact that the petitioner's transfer order dated 23.08.2016 has been approved by the Chief Minister, as required by the OM dated 06.08.2013. 7. The submission of the counsel for the respondent Nos. 5 is not controverted by the petitioner's counsel that the petitioner was posted in Nagaon since 12.11.2010. The petitioner was thereafter posted to Sibsagar on 14.02.2014 and thereafter posted back to Nagaon on 09.10.2014. This transfer of the petitioner from Nagaon to Sibsagar was only a temporary arrangement in view of the guidelines laid down by the Election Commission of India in the Model Code of Conduct. The petitioner had been transferred to Nagaon during the parliamentary elections conducted in the year 2014. The Model Code of Conduct prohibits persons who had been in the same place of posting for more than 3 years to remain in the said place of posting. It was due to the above circumstances that the petitioner had been transferred to Sibsagar only for a short while. The Model Code of Conduct prohibits persons who had been in the same place of posting for more than 3 years to remain in the said place of posting. It was due to the above circumstances that the petitioner had been transferred to Sibsagar only for a short while. This transfer to Sibsagar was not due to any administrative exigency but due to the prohibition of officials to remain in the same place of posting during the election, where they had served for 3 years. 8. The petitioner was initially transferred to Dispur as Deputy Secretary, vide order dated 08.10.2015. The petitioner filed WP(C) No. 6359/2015 challenging his transfer to Dispur on the ground of his mother's illness. WP(C) No. 6359/2015 was disposed off by order dated 13.10.2015 as follows:- "Having regard to the limited grievance expressed by the petitioner and without expressing any opinion on merit. Court is of the view that it will be open to the petitioner to submit a representation before the Secretary to the Govt. of Assam, Personnel (A) Department for modification of his transfer and in the event such a representation submitted within a period of 1 (one) week from today, the same may be considered in accordance with law. Let such exercise be carried out within a period of 2 (two) weeks' from the date of receipt of the representation as above. Till this period, status quo as on today as regards posting of the petitioner shall be maintained. However, it is made clear that in the event representation is not filed within the period as noticed above, question of maintenance of status quo would not arise." 9. The petitioner accordingly submitted a representation dated 15.10.2015, which was rejected. The rejection of the petitioner's representation was due to the following grounds, which is extracted from the order of rejection dated 11.11.2015:- "Whereas, it is also seen from the documents with his representation that his mother is staying at Guwahati to which the petitioner is transferred to and hence, his transfer to Guwahati is not going effect or will not be disadvantageous for taking care of his mother" 10. Being aggrieved with the order of rejection dated 11.11.2015, the petitioner filed WP(C) No. 6976/2015. Being aggrieved with the order of rejection dated 11.11.2015, the petitioner filed WP(C) No. 6976/2015. WP(C) No. 6976/2015 was disposed off vide order dated 22.12.2015 wherein it was stated that the petitioner's mother had expired on 19.12.2015 and in view of the death of the petitioner's mother, the petitioner was given some time to complete the religious and other formalities at Nagaon before joining his transferred post in the Secretariat. The order dated 22.12.2015 passed in WP(C) No. 6976/2015 directed the petitioner to join the post of Deputy Secretary to the Government of Assam, Home and Political Department on 01.02.2016. 11. There is nothing in the writ petition to show that the petitioner had complied with the order dated 22.12.2015 passed in WP(C) No. 6976/2015, wherein he was directed to join the post of Deputy Secretary to the Government of Assam on 01.02.2016. In fact, the writ petition is silent with regard to the fact that the petitioner had been posted in Nagaon from 12.11.2010. The petitioner in paragraph 2 of the writ petition has only spoken about his transfer to Nagaon w.e.f. 09.10.2014 and thereby tried to make out a case before this Court that he had not completed his tenure of three years in his place of posting at Nagaon. The petitioner in paragraph 2 of the writ petition has also stated that he was illegally and arbitrarily transferred from Nagaon to the post of Deputy Secretary to the Government of Assam vide order dated 08.10.2015. The petitioner has also stated that he has filed WP(C) No. 6976/2015 challenging the transfer order dated 08.10.2015 and that this Court had directed the petitioner to submit a representation which was to be considered by the authorities as per law. The averments of the petitioner as reflected in paragraph 2 of the writ petition is in direct contradiction to the order dated 22.12.2015 passed in WP(C) No. 6976/2015 and the operative portion of which is reproduced below:- "Having heard learned counsel for the parties and having regard to the recent developments i.e. death of petitioner's mother, Court is of the view that it would be in the interest of justice, if the petitioner is allowed some time to complete the religious and other formalities at Nagaon before joining his transferred post in the Secretariat. Accordingly, it is hereby directed that petitioner shall join the post of Deputy Secretary to the Govt. Accordingly, it is hereby directed that petitioner shall join the post of Deputy Secretary to the Govt. of Assam, Home and Political Department on 01.02.2016. Mr. Mahanta, learned Standing Counsel, Personnel Department may return back the record. Subject to the above, writ petition is disposed of." 12. The respondent No. 5 in paragraph 8 of the IA(Civil) No. 1376/2016 has stated that the petitioner's statement that he has served in Nagaon for less than 3 years is an incorrect statement, as the petitioner has served for more than 5 years. The respondent No. 5 in paragraph 8 has also stated that the petitioner has not complied with the order dated 22.12.2015 passed in WP(C) No. 6976/2015. 13. In reply to the above submission of the respondent No. 5, the petitioner in paragraph 11 of his affidavit-in-opposition of the I.A has stated that the statements made in paragraph 8 of the I.A. are incorrect, false, baseless, misconceived and denied. The petitioner has also stated in paragraph 11 that the petitioner has never completed 5 years in the district of Nagaon and has completed only 1 year 11 months in Nagaon. 14. The petitioner's transfer along with others vide the impugned transfer order dated 23-08-2016 has been approved by the Chief Minister in compliance with the OM dated 06-08-2013, which is the transfer policy made by the State Government. 15. This Court finds that the petitioner has not been truthful in his averments made in the writ petition and in fact denied as false and baseless, the averments made by the respondent No. 5, that the petitioner had served at Nagaon for more than 5 years. 16. In the case of K.D. Sharma v. Steel Authority of India Limited and others, reported in (2008) 12 SCC 481, the Apex Court had held that a party, who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress other facts. The Apex Court also held that if material facts are not stated fairly and truly, but in a distorted manner to mislead the Court. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress other facts. The Apex Court also held that if material facts are not stated fairly and truly, but in a distorted manner to mislead the Court. The Court has inherent power to protect itself and to prevent to about its process to discharge the rule of nisi and refuses to proceed further with the examination of the case on merits. The Apex Court then said "If the Court does not reject the petition on that ground, the Court would be failing in its duty. It fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court." 17. As stated earlier, this Court finds that the petitioner has not been truthful and has not come to Court with all the facts. Some facts have been concealed. This Court also finds that the petitioner has already served beyond the normal three years tenure of posting at Nagaon. Due to the above reasons, this Court refuses to proceed further with the examination of the petitioner's case on merit. The petitioner, along with others have been transferred by the same impugned transfer order dated 23-08-2016. There is nothing to show that the petitioner's transfer has not been made in public interest. The reason given by the petitioner in resisting the transfer order earlier in WP(C) No. 6359/2015 and WP(C) No. 6976/2015 was the illness of his mother. The mother having expired, the reason for staying back at Nagaon on the mother's illness is no more an issue. The new ground for resisting the impugned transfer order cannot be allowed as the petitioner cannot be allowed to take refuge behind a concealed fact, i.e. he has served for more than five years in Nagaon. 18. In view of the reasons stated above, the writ petition is dismissed.