High Court · 2010

The law laid down in the above cases undoubtedly point out that frequent transfe r of an officer from one place to another place without any cogent ground is mal afide and this has to be deprecated on the ground that such transfer can uproot a family, cause irreparable harm to the Government servant and drive him to desp eration. There is no dispute to the above proposition of law. A transfer, which is malafide or is ordered by way of punishment or in violation of statutory Rule s/Notifications etc., has to be interfered by a Court in exercise of its writ ju risdiction. It was further held that once the transfer order is made in public interest subs equent orders cancelling or superseding must be supported with sufficient reason s. If any such order is passed in cryptic manner without assigning any reason th at would seem to be not in public interest. (5) In the instant case, while the petitioner was serving as Tax Collector ( of Bhorakhai G.P. allowed to work as the i/c Secretary of Bhora provincialized) khai G.P. under, SAP as per order dated 20.1.2006 passed by the Director, Pancha yat & Rural Development (P&RD for short), Assam. While he was working as such, t he petitioner was asked to hold the additional charge of the Secretary, Chesri G .P. under Borkhola A.P. as per order dated 13.8.2008 passed by the Chief Executi ve Officer, Cachar Zilla Parishad, Silchar, respondent No.4. The petitioner, the reafter was promoted and posted as Gaon Panchayat Secretary, Bhjantipur G.P. und er SAP as per order dated 26.2.2009 passed by the Commissioner, P&RD Department. In compliance to the said order, the petitioner joined in the post on 27.2.2009 itself submitting his joining report before the Executive Officer, SAP. The joi ning report so submitted was forwarded to the Commissioner, P&RD vide letter dat ed 5.3.2009 by the Block Development Officer cum Executive Officer, Silchar Deve lopment Block, SAP. The respondent Nos. 4 and 5 however did not allow the petiti oner to perform his duties in the post of the G.P. Secretary, Bhajantipur G.P. d espite the order dated 26.2.2009 passed by the higher authority. The petitioner accordingly submitted a representation dated 28.5.2009 before the respondent No. 4 praying for giving the petitioner a place of posting as Secretary in Bhajanti pur G.P. in order to enable him to perform his duties. Thereafter, vide order da ted 4.7.2009 the petitioner was transferred and posted on deputation to the post of G.P. Secretary, Ambikapur G.P. under SAP. The respondent No. 4 thereafter vi de order dated 13.7.2009 cancelled the earlier order dated 9.7.2009 transferring the petitioner on deputation to Ambicapur G.P. under SAP. When all the orders w ere passed one after another, the transfer order dated 26.02.2009 passed by Comm issioner, P&RD still was/is inforce as the same was never cancelled. However, to the utter surprise of the petitioner, the respondent No. 4 vide order dated 27. 7.2009 posted one Sri Rathindra Kumar Sinha to the post of G.P. Secretary, Bhaja ntipur G.P. Thereafter, again vide order dated 19.10.2009 respondent No. 4 trans ferred the petitioner to the post of G.P. Secretary Ambicapur G.P. under SAP whi ch was eventually cancelled vide order dated 26.10.2009. The petitioner was agai n transferred to the post of G.P. Secretary, Kathal G.P. under Tapang A.P. issue d vide order dated 16.11.2009 by the respondent No. 4. In the meantime, the Commissioner, P&RD directed the Chief Executive Officer con cerned of Zilla Parishad that as per circular dated 20.11.2009 frequent transfer of G.P. Secretary should be avoided, inasmuch as, frequent transfer affects the implementation of the schemes of the Department. Respondent No. 4 despite recei pt of the aforesaid circular/letter dated 20.11.2009 issued by the Commissioner, P&RD, vide order dated 3.12.2009 again transferred the petitioner to Ambicapur G.P. which was followed by another order dated 07.12.2009 issued by the responde nt No. 4 again transferring the petitioner to Ghungoor G.P. to the utter disrega rd of the circular dated 20.11.2009 issued by the higher authority. The instant writ petition has been filed challenging the aforesaid order dated 07.12.2009. (6) Bringing the above facts to the notice of the Court, Mr. Dhar has strenu ously urged that as per Office Memorandum No. ABP.116/04/4 dated 04.02.2002 tran sferable officers of the State normally be transferred only upon completion of t hree years of service at one place. But in the instant case, the petitioner has been subjected to frequent transfers by respondent No. 4 and 5 due to extraneous consideration and with malafide to prevent the petitioner from joining in the p ost of Secretary, Bhajantipur G.P. pursuant to order dated 26.02.2009 passed by the Commissioner, P&RD. (7) An affidavit-in-opposition has been filed on behalf of respondent No. 4 contending therein that the petitioner was promoted as Secretary and posted to B hajantipur G.P. vide order dated 26.2.2009 while he was working as i/c Secretary of Chesri G.P. However, he could not join in Bhajantipur G.P. as per his letter dated 19.3.2009 submitted to the Office and, therefore, he submitted his joini ng report to the Executive Officer, SAP. The petitioner has also submitted one r epresentation dated 28.05.2009 and accordingly considering the representations s ubmitted by the petitioner on 19.3.2009 and 28.5.2009, office order dated 05.06. 2009 was issued posting the petitioner as Secretary of Chesri G.P. under Borkhol a A.P. and accordingly he performed his duties at Chesri G.P. Thereafter, he was deputed temporarily to Ambicapur G.P. under SAP vide order dated 4.7.2009 in ad dition to his duties in Chesri G.P. and the additional charge of Ambicapur G.P. was withdrawn vide order dated 13.7.2009 and thereafter he remained in his origi nal place i.e. Chesri G.P. In that view of the matter, the petitioner’s posting at Bhajantipur G.P. was closed on providing his posting as Secretary in Chesri G .P. instead of Bhajantipur G.P. It has further been contended that though several transfer orders were issued t o the petitioner, he could not join in his places of posting. Hence, those order s were not implemented and that as per prayer made by the petitioner on 6.6.2009 to transfer him within Silchar Development Block, he was transferred to Ambicap ur G.P. vide order dated 19.10.2009, but he could not join there and submitted h is joining report only on 04.12.2009. Thus he was transferred to Kathal G.P. on 16.11.2009 wherein also he could not join. It has further been stated that thoug h the attempts were made to provide the petitioner in suitable G.P. as per his p rayer made in the representation dated 6.6.2009 his joining were not accepted b y the concerned G.P. Presidents. So transfer orders could not be implemented an d he remained as Secretary Chesri G.P. under Borkhola A.P. till 4.12.2009. Moreo ver, in compliance to the promotional order of the Commissioner, P&RD, Assam dat ed 26.02.2009, the petitioner was posted to Chesri G.P. as Secretary instead of Bhajantipur G.P. and accordingly, he joined as Secretary in Chesri G.P. without raising any objection. It has also been contended by respondent No. 4 that deleg ation of power of transfer, posting and granting of leave to provincialized Panc hayat employees has been entrusted to Chief Executive Officer of Zilla Parishad vide order dated 04.08.2007. Therefore, the respondent No. 4 has been authorized to pass the transfer order in case of the petitioner also. In the counter affidavit filed by respondent No. 4, there is no meticulo (8) us dealing with the grievances raised by the petitioner, more particularly, as t o why the petitioner was asked to join as Secretary at Chesri G.P. inspite of pr omotion order dated 26.02.2009, inasmuch as the promotion order issued by the h igher authority (Commissioner, P&RD), he was promoted as Secretary and posted at Bhajantipur G.P. under SAP. Respondent No. 4 in her counter has contended that pursuant to letter dated 19.3.2009 and 28.5.2009, the petitioner was posted as Secretary of Chesri G.P. under Borkhola A.P. I have perused both the letters alo ngwith the letter-dated 25.5.2009 which are available in the record. Letters dat ed 19.3.2009,25.2.2009 and 28.5.2009 being relevant are quoted herein below :- (cid:28)To: Letter dated 19.3.2009 The Chief Executive Officer Cachar Zilla Parishad Sadarghat Road, Silchar-1, Cachar, Assam. Non acceptance of my joining report by the President, Bhajantipur G.P. Sub: 1. Office Order issued by the Commissioner, Panchayat & Rural Developmen Ref: t Department, Panjabari (Juripar), Guwahati-37, Assam, vide No. PDDE(II) 45/2008 /64-65, dtd. 26/02/09 (enclosed).

2. Acceptance letter issued by the B.D.O., Silchar(enclosed). Madam, In pursuance of the Office Order as mentioned above, I have duly submitted my jo ining report to the President, Bhajantipur G.P. on the forenoon of 27th February , 2009 as Secretary of Bhajantipur G.P. but desperately he denied to accept the same for any unknown reason. However, without having any alternative way to meet the problem, I have submitte d my joining report as Secretary, Bhajantipur G.P. addressing to the BDO, Silcha r Dev. Block & which he accepts. In fine, I fervently request your honour would be kind enough to do the needful arrangement so that I may be able to perform my duties freely as Secretary, Bhaj antipur G.P. as soon as possible. But unfortunately, due to non-finalisation of my posting & withdrawal of existing Secretary, P.O. has released NREGS cheque to the existing Secretary & who has deposited the same in another bank in spite o f existing account for NREGS is already operating under CBI, Hospital Road, Silc har. Which may create serious confusion in near future & may help to those who a re interested for mis-appropriation of Govt. fund. This is for favour of your kind information & Necessary action. Yours faithfully, Sd/-Illegible Secretary Under Cachar Zila Parishad Silchar.19.3.09 Copy forwarded for favour of kind information & necessary action to:- 1. 2. 3. 4. The Commissioner, P&RD, Punjabari (Juripar),Guwahati-37, Assam. The Deputy Commissioner, Cachar, Silchar, Assam. The Project Director, DRDA, Cachar, Silchar, Assam. The Executive Officer, Silchar, Anchal Panchayat, Cachar, Assam.

5. The President, Bhajantipur G.P., Cachar, Assam. Under Cachar Zila Parishad Silchar. (cid:29) Secretary Letter dated 25.5.2009 (cid:28) To: The Chief Executive Officer Cachar Zilla Parishad Submission of records of Bhajantipur G.P. with all materials. Your letter No. CZPG(EStt.))345/Pt.-III/2006-07/1 Dt. 22.05.09. Silchar-1, Cachar, Assam. Sub: Ref: Madam, With due respect & humble submission, I have the honour to inform you the follow ing few lines for favour of your kind information & necessary action. That Madam, on the basis of the promotional posting order issued by the Commissi oner, P&RD Deptt. Assam (enclosed) I have submitted my joining report to the Ex ecutive Officer, Silchar, as Secretary, Bhajantipur G.P. on 27.02.09 (enclosed) which is duly accepted & forwarded by the BDO, Silchar addressing to the Commiss ioner, P&RD Deptt., Assam on 05.03.09 (enclosed). But, on due course, the Presid ent, Bhajantipur G.P. desperately denied to obey the order of the Commissioner, P&RD Deptt. Assam & ignored to accept my joining & which I duly informed you on 19.03.09 (enclosed). That Madam, all the said process are initiated on pre parliament election period when you are in election duty. But when the election process is over, I have co mmunicated to you personally & requested to finalise the matter as early as poss ible. On the basis of my verbal request you have assured me to do the needful ar rangement in presence of the President, CZP, Silchar which is till under your ki nd disposal. Therefore, you are fervently requested to ensure my present position of service after issuance of promotional posting order issued by the Commissioner, P&RD Dep tt. Assam & thus help me to render my service to the optimum limit for the great er interest of the people of the G.P. Soliciting your early & Justified action in this regard, I remain. Yours faithfully, Sd/- (ASHUTOSH GUPTA) Secretary 25.5.09 Copy forwarded for favour of kind information & necessary action to :- The Commissioner, P&RD Deptt., Panjabari, (Juripar) Guwahati-37, Assam. (ASHUTOSH GUPTA) Secretary (cid:29) Letter Dated 28.5.2009 To: The Chief Executive Officer Cachar Zilla Parishad Sadarghat Road, Silchar-1, Cachar, Assam. Sub: Seeking your kind intervention in connection with implementation of my p romotional posting order issued by the commissioner, P & RD. Deptt., Assam again st Bhajantipur G.P. Ref: Office Order issued by the Commissioner, Panchayat & Rural Development D epartment, Panjabari (Juripar), Guwahati-37, Assam, vide No. PDDE(II) 45/2008/64 -65, dtd. 26/02/09 (enclosed). Madam In pursuance of the Office Order as mentioned above, I have the honour t o inform you that I have duly submitted my joining report to the Executive Offi cer, Silchar A.P. on the forenoon of 27th February, 2009 as Secretary of Bhajant ipur G.P.(Enclosed) which he has forwarded to the Commissioner,P&RD Deptt, Assam on 5th March,2009(Enclosed). That Madam, I have submitted all these information timely in your office for further necessary action. But unfortunately all my efforts become no outcom e till today for any unknown reason. However Madam, if there is any obligation to continue my service against Bhajantipur G.P. kindly issue me an order locally in modification with the orde r of the Commissioner, P&RD Deptt. Assam & let me know my present place of posti ng , so that , I may be able to render my service to the people of that G.P.fre ely. Further Madam, one important point should be clear here that, I have pro moted against retired provincialised vacant post & placed in the same G.P. wher e I have been serving as i/c Secretary since last 2006 according to the order of the Directorate, P&RD., Assam & from where my monthly salary will be sanctio ned by the deptt. showing my placement of service against sanctioned vacant pos t & its retention to the Finance Deptt. Assam. So, you are requested to keep thi s technical matter in mind before altering the order of the Commissioner. P&RD., Assam as mentioned above. This is for favour of your kind information & necessary action. Yours fathfully Sd/-Illegible 28.5.09 (ASHUTOSH GUPTA) Secretary, Chesri G.P. (cid:29) However, records do not reveal any action taken by respondent No. 4 on the above letters, instead the petitioner was transferred to Ambikapur G.P. on deputation , which, however was cancelled later on. (9) Considered the submissions made by the learned counsel appearing for the parties. Also perused the pleadings, along with the records produced by the cou nsel appearing for the respondents. (10) ssued bonafide and in the public interest? The question to be answered in this case is whether the impugned order i (11) To appreciate this point, the grounds urged by the petitioner herein nee ds to be scrutinised. The first ground urged by the petitioner is that inspite o f the promotion order issued by the higher authority, he was not allowed to join in the promotional post at Bhajantipur. Second ground urged is that the impugne d order is passed after a series of transfer orders passed from time to time wit hout cancelling and/or modifying the transfer order dated 26.2.2009. The third g round urged is to the effect that those transfer orders were issued in contraven tion of the Rules/Notifications etc. as well as Government circular dated 20.11 .2009 issued by the Commissioner, P&RD directing the CEO of Zilla Parishad debar ring frequent transfers of the G.P. Secretaries. (12) While refuting the averments made in the writ petition, the respondent a uthority simply denied the facts, but no specific case is made out supporting th e action of the authority that the impugned order passed bonafide and in public interest. More so, as to why the petitioner was asked to join at Chesri G.P. ins tead of Bhanjantipur, though vide promotion order dated 26.02.2009 the petitione r was promoted as G.P. Secretary and posted at Bhajantipur under SAP. The principle laid down in the cases relied upon by the petitioner is th (13) at once transfer order is made in public interest, subsequent orders cancelling or superseding must be supported with sufficient reasons. If any such order is p assed in cryptic manner without assigning any reasons that would be seem to be n ot in public interest. It is also correct that in exercising the discretionary powers so confer (14) red on the Government in dealing with transfer orders which is its prerogative, the authority must act with all fairness and reasonableness. The authority must not be allowed to exercise such power arbitrarily or with its whims and fancies. (15) Ms. VL Sinha, learned State Counsel vehemently contests the submission advanced on behalf of the petitioner justifying the impugned order of transfer d ated 07.12.2009. Ms Sinha submits that authority in its wisdom passed the impugn ed order in the public interest and as such there is no illegality or irregulari ty in passing the said order. (16) As stated earlier it appears on the face of the record that the authorit y in passing the transfer orders subsequent to the order dated 26.2.2009 did not assign any reason whatsoever for modifying and superseding the earlier order da ted 26.2.2009 and in that view of the matter, I am not at all in agreement with the submissions of learned State Counsel. For the reasons and discussions indicated above, I am of the considered (17) opinion that the impugned transfer order suffers from material irregularities af fecting the service condition of the petitioner and, therefore, not sustainable in law being not issued in public interest. (18) In the result, the petition is allowed. The impugned order dated 07.12. 2009 is quashed and set aside and the respondent authority is directed to restor e the earlier order dated 26.02.2009 passed by the Commissioner, P&RD, posting t he petitioner as Secretary, Bhajantipur G.P. under SAP. (19) The petitioner shall obtain a certified copy of this order and submit it to the appropriate authority who shall pass necessary order within two weeks fr om the date of receipt of the same. (20) The writ petition is accordingly allowed. However, considering the facts and circumstances of the case there shall be no order as to costs.