High Court · 2009

Heard Mr. Goswami, learned Sr. Counsel for the petitioner. Also heard Dr. Ahmed, learned Standing Counsel, Irrigation Department, Government of Assam and Mr. MK Choudhury, learned Sr. Advocate for the newly impleaded respon dent No.4. In terms of the order dated 12.06.2009, Dr. Ahmed has produced t he relevant records pertaining to the impugned order of transfer of the petition er and the respondent No.4. The principal ground on which the above order is as sailed by the petitioner is that it is opposed to the letter and spirit of the t ransfer policy of the Government employees, whereunder as far as practicable the y are to be posted in their home town on the verge of their retirement. It is h is pleaded case that as he is scheduled to retire in the year 2010, his displace ment from Bongaigaon, which is his hometown is not in conformity therewith. It is also neither in administration exigencies nor in public interest. As by the impugned order, the respondent No.4 is sought to be accommodated at Bongaigaon a t his cost, the impugned order lacks in bonafide as well. On instructions, the learned Sr. Counsel submits that as on date , the petitioner has not handed over the charge of his Office of Executive Engin eer of Bongaigaon Division, (I), Bongaigaon to the respondent No.4. Dr. Ahmed with reference to the official records has submitted t hat the notification, whereby the respondent No.4 has been posted as Executive E ngineer, Bongaigaon Division (I), Bongaigaon in place of the writ petitioner is based on an application filed by him (respondent No.4) expressing his difficulty to join at Nagaon. Mr. Choudhury, learned Sr. Counsel for the respondent No.4 submi ts that in the meantime, he has been released from Mangaldoi Division (I), Manga ldoi pursuant to the impugned notification of transfer and has submitted his joi ning report at Nagaon. The learned Sr. Counsel has also drawn the attention of the Court to the letter dated 29.06.2009 of the Deputy Secretary (E) to the Gov ernment of Assam, Irrigation Department permitting him to take unilateral charge of the Office of the Executive Engineer, Bongaigaon Division (I), Bongaigaon on 03.07.2009, if the petitioner fails to hand over charge thereof pursuant to the impugned order of transfer, in the meantime. The rival stands have been duly considered. It is a matter of record that the respondent No.4 had in the ear lier round of litigation in WP(C) No.2293/09 unsuccessfully challenged his trans fer to Nagaon and the writ petition was dismissed on 10.06.2009. The official r ecords reveal that on 18.06.2009 he submitted a representation to the Secretary of the Department requesting for modification of his said order expressing some personal difficulties to join at Nagaon. The said request was processed and fol lowing a discussion of the appropriate administrative level, the arrangement as reflected in the impugned notification was decided. In the result, the responde nt No.4 was diverted to the post held by the writ petitioner, i.e. the Executive Engineer, Bongaigaon Division (I), Bongaigaon, consequently posting him (the pe titioner) at Champamati Canal Division, Dhalibagan against a vacant post. One S ri Hema Kanta Hazarika on his promotion has been posted at Nagaon. The records though clearly demonstrate that the new arrangement had been the yield of the co nsideration of the respondent No.4’s request made on 18.06.2009, the same does n ot disclose that the authorities had been alive also to the transfer policy whic h inter alia provides that an incumbent on the eve of his retirement ought to be allowed to remain in his home town as far as practicable. There is no reason i n particular, as to why the writ petitioner had been picked up to be replaced by the respondent No.4. This assumes importance in view of the undisputed fact th at the petitioner is scheduled to retire in 2010 and that Bongaigaon is his home town. It cannot be gainsaid that though transfer is an incidence of service and the administrative authority is within its discretion to make an arrangement tha t would be best suited to the interest of the organisation, in the process, howe ver, it is expected that guidelines, if any formulated in this regard is not ove rlooked or disregarded. There is no wrangle at the bar that the transfer guidel ines now in force make it incumbent on the concerned administrative authority to have in mind the consideration that an employee scheduled to retire shortly oug ht to be posted in his hometown as far as practicable. In the instant case, whereas the respondent No.4’s application e xpressing his difficulty to join at Nagaon, has weighed with the concerned autho rity, the above aspect of the transfer guidelines appears to have been left out of consideration. The impugned order of transfer vis-à-vis the writ petitioner, therefore, cannot be said to be in wholesome alignment with the guidelines. Be that as it may, in view of the submission made by the respond ent No.4 that pursuant to the impugned order of transfer he has in the meantime, been released from Mangaldoi and that his reliever has joined there and further that he has submitted his joining report at Nagaon, this Court is not inclined to cancel the impugned order of transfer. It would open for the writ petitioner to submit a representation before the Secretary of the Department highlighting his pleas based on the tran sfer guidelines indicated hereinabove, besides urging other grounds, as may be c onsidered relevant. The same shall be done by the petitioner, if so advised, by 4th July, 2009. Needless to say that, if such a representation is submitted by the petitioner, the concerned authority would consider the same and pass an app ropriate order strictly in accordance with law within a week herefrom. Having regard to the liberty granted by this Court to the writ p etitioner to submit his representation, as above, and also noticing the fact tha t the respondent No.4 has been permitted to take unilateral charge of the Office of the Executive Engineer, Bongaigaon Division (I), Bongaigaon on or before 03. 07.2009, it is provided that for this period of 1 (one) week from this order, th e implementation of the impugned order of transfer would remain stayed. The writ petition stands disposed in the above terms. No cost.