Resources Department under the signature of the Secretary by which while & Ors. v. Dilip Kr. Das) & Ors.

#3. or a ready reference, the order is quoted below: (cid:28)Heard Mr. B.D. Konwar, the learned counsel appearing for the petitioner. Mr. K. N. Choudhury, the learned Addl. Advocate General represents the State respondent s. Mr. D.K. Das, the learned Counsel appears for the respondent No. 7.

#2. The petitioner is an Assistant Executive Engineer of the Jagiroad Water Resou rces Sub-Division and he challenges the order dated 31.12.2011, whereby the res pondent No. 7 is brought to Jagiroad WR Sub-division and the petitioner is trans ferred to Assam Brahmaputra Valley Flood Control Board, Guwahati.

#3. The petitioner was transferred to Morigaon only on 19.11.2000 and accordingly he contends that it is a case of premature transfer. Since the Government O.M. dated 04.02.2002 provides that all proposal for premature transfer should be pla ced for prior approval of the Chief Minister and only on his concurrence, transf er before expiry of normal tenure can be made, the records were called and in th e meantime this Court ordered maintenance of status quo.

#4. The records are placed for perusal of the Court and it appears therefrom that , specific attention of the Hon’ble Chief Minister was not drawn to the fact tha t the petitioner served at Morigaon only for about 13 months since 19.11.2000. T herefore while approval was accorded to the proposal for transfer, the Chief Min ister was perhaps unaware that proposal was for a premature transfer.

#5. Faced with the above situation, Mr. K.N. Choudhury, the learned Addl. Advocat e General upon instruction submits that the Government is going to withdraw the impugned transfer order dated 31.12.2011 (Annexure-P/15). However, he prays that liberty may be given to the State to take appropriate decision in exigencies of service on posting of the petitioner.

#6. Bearing in mind the above stand of the State, the transfer order dated 31.12. 2011 cannot now operate against the petitioner and its is declared accordingly. The Authorities are however at liberty , to take a fresh decision in the matter. (cid:29)

#4. From the above order dated 10.02.2012 what is seen is that the specific attention of the Chief Minister of the State was not drawn to the fact that the petitioner had served at Jagiroad only for about 13 months since his posting the re on 19.11.2010. Be it stated here that as per the adopted guidelines of the St ate Govt., an officer in the normal circumstance is allowed to remain posted in the station for a period of three years. However, he can be transferred even be fore the said stipulated period of three years with the approval of the Chief Mi nister of the State. In the instant case, although the approval of the Chief Min ister was obtained, but it was noticed by the Court that the specific attention of the Chief Minister was not drawn to the fact that at the time of issuance of the impugned order of transfer the petitioner had served at Jagiroad only for 13 months. It is on the above count the learned Sr. Addl. Advocate General, Assam a 5. ppearing for the State respondents submitted before the Court that the impugned order of transfer would be withdrawn. However, liberty was prayed for to deal with the matter appropriately in the exigencies of service. The said liberty was granted by the Court. It is pursuant to such liberty, the State Govt. has now i ssued the impugned transfer order dated 16.03.2012 (Annexure-17).

#6. I have heard Mr. B.D. Konwar, learned counsel for the petitioner as well as Mr. K.N. Choudhury, learned Sr. Addl. Advocate General, Assam. I have also h eard Mr. D.K. Das, learned counsel appearing for the respondent No. 8.

#7. The petitioner in support of his plea that the impugned order of transfe r has been issued in malafide exercise of power, has referred to the documents a nnexed to the writ petition as Annexure-5 Colly. According to the petitioner, si nce he did not yield to the pressure mounted by the local MLA to award the contr actual works to the persons of his choice, he has been transferred by the impug ned order. The petitioner has also referred to Annexure-7 communication dated 07 .12.2011 addressed to the Chief Minister of the State by the Minster, Food, Civi l Supplies and Consumer alongwith the local MLA. By the said communication the t ransfer of the petitioner was prayed for in greater interest of public service. By Annexure-8 communication dated 19.12.2011, the Minister of Food, Civil Suppli es and Consumer individually requested the Secretary to the Govt. of Assam in th e Water Resources Department to transfer the petitioner from Jagiroad to Guwahat i on the ground that he was inefficient in tackling the flood erosion problem in Morigaon District.

#8. In the earlier writ petition also the petitioner had urged the above gro unds seeking interference of this Court in the transfer order dated 31.12.2011. In the said writ petition the respondents had filed counter affidavit denying th e aforesaid allegations made by the petitioner. In the counter affidavit specifi c averments had been made to the effect that the transfer of the petitioner was initiated in public interest. In this connection, the affidavit also referred to the decision of the Apex Court reported in (2007) 8 SCC 150 (Md. Masood Ahmad v s. State of U.P. and ors.) and another decision of this Court reported in 2003 ( 1) GLT 530 ( State of Assam vs. Dilip Kr. Das).

#9. In the said affidavit it was stated that the petitioner was transferred to Guwahati and in his place the respondent No. 8 was transferred considering th e efficiency in handling the works in question. It was stated that there was n o arbitrary exercise of power in respect of issuance of the transfer order dated

31.12.2011.

#10. As to what was the order passed by this Court on the basis of the afores aid pleadings, has been noted above. The order dated 10.02.2012 by which the wri t petition was disposed of, speaks nothing of the malafide exercise of power to wards issuance of the earlier transfer order. However, it was noticed that the f act that the petitioner had not completed three years of service at Jagiroad was not brought to the notice of the Chief Minister. It was on that count the impu gned transfer order was withdrawn with the liberty to carry out fresh exercise. The said prayer was allowed.

#11. After the aforesaid developments, the Secretary, Water Resources Departm ent put up a note to the Minister, Water Resources Department which is available at Annexure-16. By the said note, all the aforesaid facts had been stated and t he approval of the Chief Minister was sought for towards issuance of the impugne d order of transfer. It appears that the matter was placed before the Chief Min ister of the State since his approval was required in view of the fact that the petitioner had not completed three years of service at Jagiroad. On perusal of t he same, the Chief Minister accorded his approval towards issuance of the order. It was pursuant to the said exercise, the State Govt. in the Water Resources De partment issued the Annexure-17 order dated 16.03.2012.

#12. Mr. Konwar, learned counsel for the petitioner has placed reliance on th e decision of this Court reported in 2004 (1) GLT 347 (Jibeswar Thakuria and ors . vs. State of Assam and ors.) wherein it was emphasised that the departmental Secretary ought not have yielded to the pressure mounted by the Minister and for that matter, ought not have succumbed to political pressure. In the said case i t was found that the impugned order of transfer was based on extraneous consider ation. In that case request of the political bosses was acceded to by the depart mental Secretary without any cross verification.

#13. Mr. K.N. Choudhury, learned Sr. Addl. Advocate General has placed relian ce on the decision reported in (2004) 4 SCC 245 (Union of India and ors. vs. Jan ardhan Debanath and anr.) in which the Apex Court made the following observation s: (cid:28)12. & The manner, nature and extent of exercise to be undertaken by courts/trib unals in a case to adjudge whether it casts a stigma or constitutes one by way o f punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions- status, se rvice prospects financially- and the same yardstick, norms or standards cannot b e applied to all categories of cases. Transfers unless they involve any such adv erse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality o f public service and meet untoward administrative exigencies to ensure smooth fu nctioning of the administration. (cid:29)

#14. As the petitioner himself has stated in the writ petition that transfer is an incident of service. Needless to say that if an officer is transferred in exigencies of service, the court will not interfere with such order of transfer . In the instant case, although the petitioner has referred to the aforesaid doc uments annexed as Anenxure-5 colly and Anenxures- 7 and 8, nothing could be esta blished that there is nexus between the said documents and the impugned order. T his is coupled with the fact that the grounds urged in the earlier writ petitio n have now been urged in the instant case again. As to what was the order passed by this court, has been noted above.

#15. After the earlier round of litigation fresh proposal was mooted by the G ovt. for transfer of the petitioner vis a vis the respondent No. 8. I have gone through the records, i.e. the file in which the impugned order has been issued. On perusal of the same, I find nothing to establish the link between the impugn ed transfer order and the Annexure -5 colly and Annexures- 7 and 8 documents/ le tters. In Annexure -16 note placed before the departmental Minister, the Secreta ry of the Department highlighted all the factual aspects of the matter with the proposal for transfer of the petitioner from Jagiroad to Guwahati and posting th e respondent No. 8 in his place. Thereafter, the file was processed at various l evel and finally was placed before the Chief Minister who accorded his approval to the proposed transfer on 03.03.2012. It was upon such exercise in the departm ental level, the impugned order dated 16.03.2012 came to be issued. Above being the position and there being no specific allegation of any m 16. alafide exercise of power by the private respondents, I see no reason to interfe re with the impugned transfer order. Accordingly, the writ petition is dismissed .