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Wp(C) 1343/2012

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Wp(C) 1343/2012 IN THE HIGH COURT OF (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P. (C) No. 1343/2012 Shri Sanjib Saikia, S/o. Late Muhiram Saikia R/o. House No. 12, Kanaklata Saikia Path, Bhetapara, Beltola, Guwahati-781028, P.S. Basistha Dist. Kamrup (M), Assam … Petitioner Versus 1) The State of Assam Represented by the Commissioner Govt. of Assam, Water Resources Department, Dispur, Guwahati-781006 2) The Secretary to the Govt. of Assam Water Resources Department, Dispur, Guwahati-781006 3) The Chief Engineer, Water Resources Department, Govt. of Assam, Chandmari, Guwahati-781003 4) Mr. Nazrul Islam Minister of Food, Civil Supplies & Consumer Affairs, Govt. of Assam Dispur, Guwahati-781006 5) Ms. Joon Jonali Baruah (MLA) Morigaon Legislative Assembly Constituency, Dispur, Gwahati 781006 6) Mr. Bibekananda Dalai MLA, 79 No. Jagiroad Legislative Assembly Constituency (LAC) Morigaon District, presently Residing at Qtr. No. 65, Old MLA W.P.(C) No. 1343/2012 Page 1 of 9 Hostel, Dispur, Guwahati-781006 7) Shri R.C. Sarma, Secretary To the Govt. of Assam, Water Resources Department, Dispur, Guwahati-781006 8) Shri Prabhat Chandra Rabha Assistant Executive Engineer Guwahati East Central WR Sub-Division, Chandmari, Guwahati 781003 9) Shri Sidhantha Sarma Assistant Executive Engineer (TC) Assam Brahmaputra Valley Flood Control Board, Chandmari, Guwahati- 781003 10) Shri Dhiraj Dewan Assistant Executive Engineer (TC) O/o. the Chief Engineer, Quality Control, Water Resources Department, Chandmari Guwahati-781003 … Respondents BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA For the petitioner : Mr. B.D. Konwar, Advocate For the respondents: Mr. K.N. Choudhury, Adll. AG Date of hearing and Judgment: 20.03.2012 JUDGEMENT AND ORDER 1. This writ petition is directed against the order dated 16.03.2012 (Annexure-17) issued by the Govt. of Assam in the Water Resources Department under the signature of the Secretary by which W.P.(C) No. 1343/2012 Page 2 of 9 while the petitioner has been transferred from Jagiroad to Guwahati, the respondent No. 8 has been transferred to Jagiroad from Guwahati. According to the petitioner, the impugned transfer order is the product of malafide exercise of power at the behest of the respondent Nos. 4 to 6. 2. The petitioner on an earlier occasion had approached this court by filing a writ petition being W.P.(C) No. 75/2012 when he was sought to be transferred by an order dated 31.12.2011. By the said order also the petitioner was transferred to Guwahati from Jagiroad and the respondent No. 8 was transferred to Jagiroad from Guwahati. It will be pertinent to mention here that the grounds urged in this writ petition were also urged in the earlier writ petition towards assailing the transfer order dated 31.12.2011. 3. The said earlier writ petition was disposed by order dated 10.02.2012. For a ready reference, the order is quoted below: “Heard Mr. B.D. Konwar, the learned counsel appearing for the petitioner. Mr. K.N. Choudhury, the learned Addl. Advocate General represents the State respondents. 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 Resources Sub-Division and he challenges the order dated 31.12.2011, whereby the respondent No. 7 is brought to Jagiroad WR Sub- division and the petitioner is transferred 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 placed for prior approval of the Chief Minister and only on his concurrence, transfer before expiry of normal tenure can be made, W.P.(C) No. 1343/2012 Page 3 of 9 the records were called and in the 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 that the petitioner served at Morigaon only for about 13 months since 19.11.2000. Therefore while approval was accorded to the proposal for transfer, the Chief Minister was perhaps unaware that proposal was for a premature transfer. 5. Faced with the above situation, Mr. K.N. Choudhury, the learned Addl. Advocate 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.” 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 there on 19.11.2010. Be it stated here that as per the adopted guidelines of the State 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 before the said stipulated period of three years with the approval of the Chief Minister of the State. In the instant case, although the approval of the Chief Minister 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. W.P.(C) No. 1343/2012 Page 4 of 9 5. It is on the above count the learned Sr. Addl. Advocate General, Assam appearing 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 issued 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 heard 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 transfer has been issued in malafide exercise of power, has referred to the documents annexed to the writ petition as Annexure-5 Colly. According to the petitioner, since he did not yield to the pressure mounted by the local MLA to award the contractual works to the persons of his choice, he has been transferred by the impugned 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, Civil Supplies and Consumer alongwith the local MLA. By the said communication the transfer 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 Supplies and Consumer individually requested the Secretary to the Govt. of Assam in the Water Resources Department to transfer the petitioner from Jagiroad to Guwahati on the ground that he was inefficient in tackling the flood erosion problem in Morigaon District. W.P.(C) No. 1343/2012 Page 5 of 9 8. In the earlier writ petition also the petitioner had urged the above grounds 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 the aforesaid allegations made by the petitioner. In the counter affidavit specific 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 vs. 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 the efficiency in handling the works in question. It was stated that there was no 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 aforesaid pleadings, has been noted above. The order dated 10.02.2012 by which the writ petition was disposed of, speaks nothing of the malafide exercise of power towards issuance of the earlier transfer order. However, it was noticed that the fact 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 impugned 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 Department put up a note to the Minister, Water Resources Department which is available at Annexure-16.
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