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Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March, 2021 Gauhati High Court Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March, 2021 Page No.# 1/10 GAHC010194552020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/3/2021 JAGAT CHANDRA DAS S/O- LATE MOHRAM DAS, R/O-CHANDMARI, MILONPUR PATH, GHY, KAMRUP(M), ASSAM, PIN- 781021 VERSUS ANUPAM KHARGARIA AND 3 ORS S/O LATE SAILYADHAR KHARGARIA, RESIDENT OF ADARSHA NAGAR, MILANPUR, NAGAON, 782001 2:THE STATE OF ASSAM REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI 6 KAMRUP (M) ASSAM 3:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT DISPUR GUWAHATI 781006 4:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROAD) CHANDMARI GUWAHATI- Advocate for the Petitioner : S N SARMA Advocate for the Respondent : Page No.# 2/10 Linked Case : WP(C)/5108/2020 ANUPAM KHARGARIA S/O LATE SAILYADHAR KHARGARIA RESIDENT OF ADARSHA NAGAR MILANPUR NAGAON 782001 Indian Kanoon - http://indiankanoon.org/doc/118399107/ 1 Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March, 2021 VERSUS THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI 6 KAMRUP M ASSAM 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT DISPUR GUWAHATI 781006 3:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROAD) CHANDMARI GUWAHATI 3 4:SRI JAGAT CH. DAS EXECUTIVE ENGINEER (C) PWRD MORIGAON DISTRICT TERRITORIAL ROAD DIVISION MORIGAON 782105 5:SRI PIJUSH HAZARIKA S/O LATE SISHURAM HAZARIKA RESIDENT OF WARD NO. 1 GARMARI RAHA DIST NAGAON ASSAM 782103 ------------ Advocate for : MR A D CHOUDHURY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS. BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA JUDGMENT JUDGMENT & ORDER (CAV) Heard Mr. A. D. Choudhury, learned counsel for the petitioner. Also heard Mr. Page No.# 3/10 D. Nath, learned counsel for the respondent Nos. 1, 2 & 3 and Mr. S. N. Sarma, learned Senior counsel for the respondent No. 4, assisted by Mr. K. Kalita. No one appears for the respondent No. 5 though notice was issued to him on 04.12.2020. Though there is no return of A/D card or unserved notice, notice is deemed to be served upon the respondent No. 5 in terms of Section 27 of the General Clauses Act. 2. The brief facts of the case is that vide notification dated 06.11.2020, a number of Engineers in the PWD were transferred. In the said notification dated 06.11.2020, the petitioner was promoted and allowed to officiate as Executive Engineer (C), PWD and posted as Executive Engineer (C), PWRD, Morigaon District Territorial Road Division, Morigaon w.e.f. the date the petitioner took charge from the respondent No. Indian Kanoon - http://indiankanoon.org/doc/118399107/ 2 Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March, 2021 4. The notification also directed the petitioner to hand over the charge of Assistant Executive Engineer (C) to the senior most AE (C) of the Division. The petitioner accordingly joined at his new place of posting at Morigaon District Territorial Road Division on 09.11.2020 by submitting his joining letter. The joining letter dated 09.11.2020 was addressed to the respondent No. 4, requesting him to take necessary action for handing over and taking over charge at an early date. However, the same not done by the respondent no.4 3. By the notification dated 06.11.2020, the respondent No. 4 was in turn transferred to the post of EE (C), PWRD, Bakulia Road Division, Bakulia, Karbi Anglong. However, the State respondents subsequently issued a notification dated 12.11.2020, whereby the posting of the petitioner and the transfer of the respondent No. 4 were both cancelled. 4. Being aggrieved by the same, the petitioner filed WP(C) 4962/2020. However, the said writ petition was withdrawn with liberty to approach this Court again, as because on 25.11.2020, another notification was issued whereby the petitioner was posted as EE(C), PWRD, Bakulia Road Division, Karbi Anglong and placed at the disposal of the Karbi Anglong Autonomous Council. The petitioner, being aggrieved by the same, has filed the present writ petition. 5. This Court, vide its Order dated 01.12.2020, stayed the operation of the Page No.# 4/10 Notification dated 12.11.2020 by which the posting of the petitioner and transfer of the respondent No. 4 was both cancelled and also stayed the Notification dated 25.11.2020 by which the petitioner was posted as EE(C), PWRD, Bakulia District Territorial Road Division, Bakulia, Karbi Anglong. The Order dated 01.12.2020 also stated that the State respondents were to explain by way of an affidavit, as to why the above two orders that had been stayed had been issued. 6. The petitioner's counsel submits that the impugned notification dated 25.11.2020, by which the petitioner has now been posted as AE(C), PWRD, Bakulia Road Division, Karbi Anglong, has been made due to the alleged mala-fide action on the part of the respondent No. 5, who is the local MLA of Jagiroad. He submits that the posting has been made at the instance of the respondent No. 4 and the respondent No. 5 and, as such, the illegal posting order, which is not in public interest, should be set aside. 7. Mr. S. N. Sarma, learned Senior counsel, appearing for the respondent No. 4, submits that the respondent No. 4 is suffering from liver cirrhosis and as the respondent No. 4 was going to retire on 31.12.2021, the respondent No. 4 had submitted an application to the State respondents to allow him to continue in his present place of posting till his retirement. He further submits that as per Government policy, a Government employee is allowed to remain in his last place of posting till his retirement. He submits that though the petitioner's home district and home town is Guwahati, the petitioner should be allowed to remain in Morigaon till his retirement, as it is his last place of posting as on date. In support of his submission, the learned Senior counsel has relied upon the judgment of this Court in the case of Narayan Chowdhury Vs. State of Tripura & Ors. , reported in 1999 (2) GLT 360. He also submits that as the transfer order has not been implemented, the transfer order cannot be acted upon in view of the guidelines laid down by the Election Commission of India. The counsel for the respondent No. 4 also submits that the respondent No. 4 has been serving in Indian Kanoon - http://indiankanoon.org/doc/118399107/ 3 Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March, 2021 Morigaon District for around 7 years and has been holding the post of EE(C), Morigaon, PWRD, Morigaon District Territorial Road Division for more than 3 years. Page No.# 5/10 8. Mr. D. Nath, learned counsel for the State respondents submits that the earlier transfer order was cancelled, due to the prayer made by the respondent No. 4 for remaining in his place of posting, the respondent No. 4 was suffering from liver cirrhosis and as he was going to retire on 31.12.2021. Mr. D. Nath submits that as he has brought the official records, the State respondents will not be filing any affidavit, as their stand is reflected in the official records. 9. I have heard the learned counsels for the parties. 10. The records show that the respondent No. 4 had made an application dated 05.12.2020 against his transfer vide Notification dated 06.11.2020, to allow him to continue to work at Morigaon District Territorial Road Division, as he was suffering from liver cirrhosis and was being treated by Dr. B.D. Goswami since 2014. Also, as he had less than 1 year before superannuation, he should be allowed to retire in Morigaon. 11. In the case of Narayan Chowdhury Vs. State of Tripura & Ors. (Supra), the petitioner therein had been transferred from his hometown to another place, while the petitioner had about 1 year 10 months left before his retirement. The petitioner had challenged the transfer order on the ground that there was a Government instruction/policy, wherein Government servants were allowed to stay in their home station on the eve of their retirement. This Court thereafter set aside the transfer order, which resulted in the petitioner remaining in his hometown till his retirement. The facts of the above case are not similar to the facts of this case, as the hometown of the petitioner herein is not Morigaon, but Guwahati. As such, the case of Narayan Chowdhury Vs. State of Tripura & Ors. (Supra) is not applicable to the facts of this case. Further, there is no Government Policy produced by the respondents to the effect that a Government servant should be allowed to remain in his last place of posting till his retirement, even though the Government servant has completed his normal tenure of posting of three years. 12. With regard to the stand of the respondent No. 4 that he is suffering from liver cirrhosis, there is no medical certificate, prescription bill etc. in the official records, in Page No.# 6/10 support of the respondent No. 4's submission that he is suffering from liver cirrhosis. However, the respondent No. 4 in I.A.(C) No.

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