WP(C) 3616/2010 BEFORE HON’BLE MR. JUSTICE IA ANSARI JUDGEMENT AND ORDER :: O R A L :: While serving as Executive Engineer, PWD, Lakhimpur State Road Division, the petitioner has been transferred and posted by the impugned order, dated 10- 06-2010, as Executive Engineer, PWD, Sonitpur AACP Division. By the impugned ord er, respondent No. 5 herein, who had been functioning as Executive Engineer (Civ il), PWD, on deputation to Finance Department, as Deputy Director (Technical) in the Directorate of Financial Institution, has been reverted to his parent depar tment and posted as Executive Engineer, PWD, Lakhimpur State Road Division, i.e. , the post, which the petitioner is presently holding. Aggrieved by the said ord er of transfer, the petitioner has impugned the same in this writ application, m ade under Article 226 of the Constitution of India, seeking to get the said tran sfer order set aside and quashed. 2. The petitioner’s case is, in brief, thus: By order, dated 19-12-2008, th e petitioner came to be posted as Executive Engineer, PWD, Lakhimpur State Road Division, and though he has not completed three years of normal tenure at the sa id place of posting, he is sought to be transferred by the impugned order, dated 10-06-2010. The said transfer order has been made at the behest of one contract or, namely, Sri Naruttam Changmai (who stands impleaded as respondent No. 8) and the one Sri Parimal Sen, a Junior Engineer at Lakhimpur State Road Division. Th e said Sri Parimal Sen, who stands impleaded as respondent No. 7, has been worki ng as Junior Engineer, for the last 27 years. He has also been holding the charg e of the office of the SDO (Technical), though he is not eligible to function as the SDO (Technical) inasmuch as the minimum rank for the said post of SDO is As sistant Executive Engineer and a Junior Engineer is not qualified to hold the sa id post of SDO (Technical). It is the SDO (Technical), who is responsible for te chnically checking the bills. Upon joining the post as Executive Engineer, PWD, Lakhimpur State Road Division, when the petitioner found irregularities in the d ischarge of duties of respondent No. 7 and having also learnt that respondent No . 7 was very closely associated with respondent No. 8 and had been helping respo ndent No. 8 in getting erroneous bills passed, the petitioner objected thereto a nd brought one Sri Nobel Deuri, Assistant Executive Engineer, Ghilamara Sub-Divi sion, in the post of SDO (Technical), but till the date of filing of the writ pe tition, respondent No. 7 had not handed over the charge of the office of the SDO (Technical) to Sri Nobel Deuri. The petitioner had also deducted, from the bill s of respondent No.8, some amount as liquidated damages for not completing the c ontract works allotted to the respondent No. 8, namely, Sri Naruttam Changmai, a nd, thus, respondent Nos. 7 and 8 have combined together and it is as a result o f their collusion that the petitioner has got transferred from Lakhimpur State R oad Division. The said order of transfer is also illegal inasmuch as the transfe r of a Government employee needs, according to the relevant policy decision and guidelines, approval of the Chief Minister if the employee, sought to be transfe rred, has not completed three years of normal tenure at the given place. In the case of the petitioner, no such approval was, however, obtained. The impugned tr ansfer order, reiterates the petitioner, is the fall out of his resistance to th e illegal and arbitrary actions of respondent Nos. 7 and 8 and it is they, who g ot the petitioner transferred. The petitioner is under medical treatment and he has been advised complete bed rest on his health ground. The transfer order, the refore, needs to be interfered with. By an order, dated 30-06-2010, passed in th is writ petition, the impugned order of transfer has been stayed. 3. The writ petition has been resisted by the State respondents, namely, re spondent Nos. 1, 2, 3 and 4. The writ petition has also been resisted by respond ent No. 5, and respondent No. 7, who, as an Assistant Engineer, has allegedly be en helping respondent No. 8, who is a contractor. As far as respondent No. 8 is concerned, he has chosen not to resist the writ petition. 4. As far as the respondent No. 5 is concerned, his case is simpler than th ose of the other respondents inasmuch he contends that the transfer order is in accordance with law and it does not suffer from any mala fide or arbitrariness, the same has been made in public interest and that he has been reverted from dep utation to his parent department in accordance with law and has been transferred to hold the post, which the present petitioner was occupying. It is the further case of the respondent No. 5 that pursuant to the order of transfer, which stan ds impugned in this writ petition, he had already handed over the charge of his office, which he was holding on deputation. The respondent No. 5 was posted as E xecutive Engineer, PWD, Haflong Road Division, and thereafter, he has been, by o rder, dated 02-02-2011, posted as Executive Engineer, PWD, Dhemaji Rural Road Di vision and he has accordingly joined the said post at Dhemaji. 5. It may also be noted that by an order, dated 04-03-2011, the present pet itioner has been appointed by the Deputy Commissioner, Lakhimpur, as the Assessi ng Officer of the Model Code of Conduct Cell, constituted by order, dated 11-02- 2011, with further direction that the petitioner shall assist the Assistant Comm issioner, Lakhimpur, who is the overall officer-in-charge of the Model Code of C onduct Cell. 6. Turning to the case of the State respondents, namely, respondent Nos. 1, 2, 3 and 4, it may be pointed out that their case is reflected in para 4 and 5 of their counter-affidavit. The averments made in para 4 and 5 are, therefore, r eproduced below: 4. That the statements made in paragraphs 5, 6 and 7 of the writ petition b eing wholly baseless and misconceived the deponent denies the correctness of the same. Further, the deponent categorically denies that the allegation that the p etitioner has been transferred at the behest of respondent Nos. 7 and 8. As stat ed hereinabove, the petitioner has been transferred on the ground of unsatisfact ory performance. It is brought to the notice of this Hon’ble Court that at a tim e when general public of Lakhimpur district is facing serious problems because o f the flood situation, the petitioner, who is required to be more active and pro mpt in discharging his duties in such a situation, have been found very irregula r in his duties and also found to be absent frequently in district headquarters. Further, the deponent humbly begs to state that the allegation made by the peti tioner regarding Sri Parimal Sen, JE holding the post of SDO (Tech) is also not correct as there is no post called SDO (Tech) in the said divisional office and there is no government order posting Sri Parimal Sen as SDO (T/C). However, ther e is a post of AEE (T/C) in the office of the Executive Engineer, Lakhimpur Stat e Road Division which is lying vacant at present. Furthermore, the petitioner by virtue of being the Executive Engineer of the Lakhimpur State Road Division is also the DDO and competent authority for passing bills, preparation of estimates of his division etc. He is also the controlling authority of his staff. Therefo re, though not admitting, if there exists any nexus as alleged, the petitioner h as to be solely responsible for the same. However, as the petitioner has been tr ansferred before completing three years in his present place of posting, prior a pproval of the Hon’ble Chief Minister, Assam has been taken in File No. RBEB.85/ 87 Pt.-III. 5. That the statements made in paragraphs 8 and 9 of the writ petition bein g misconceived are denied by the deponent. The deponent in this regard humbly be gs to state that since Lakhimpur district is a highly food prone area and since from the month of April to September is the flood period, there is a standing or der of the Government not to leave Headquarter at any circumstances except on ex ceptional emergency during such flood period. Unfortunately, the petitioner inst ead of discharging his duties in this flood period, on the pretext of having hig h blood pressure (Annexure-4 page 15 to the writ petition) is evading from his d uties at the Headquarters. The said fact itself justifies the stand of the answe ring respondents in the matter. 7. In substance, what the State respondents, namely, respondent Nos. 1, 2, 3 and 4 submit is as under: The petitioner has not been transferred at the behest of respondent Nos. 7 and 8 ; rather, he has been transferred on grounds of unsatisfactory performance. Lakh impur is a highly flood prone area and there is standing order of the Government not to leave the headquarter under any circumstances except on emergency, but t he petitioner, instead of discharging his duties during the period of flood, has been evading his duty on the pretext of having high blood pressure. At the time , when the general public of Lakhimpur had not been facing serious problem, beca use of the flood, the petitioner was found very irregular in his duties and also found to be absent frequently from his district headquarters. There is no post of SDO (Technical) in the said division. There is, however, a post of AEE (T/C) in the office of the Executive Engineer, Lakhimpur State Road Division, which is lying vacant at present. The petitioner, as the Drawing and Disbursing Officer, could have taken action against his subordinates if there is any element of tru th in the allegations made by him against respondent No. 7. Though the petitione r has not completed three years of his normal posting, he has been transferred, in the circumstances indicated hereinbefore, with the approval of the Chief Mini ster. 8. Coming to the case of respondent No. 7, it may be noted that according t o respondent No. 7, the impugned order has not been passed at his behest and/or at the behest of respondent No. 8. Respondent No. 7 has been merely discharging his duties in the office of the Assistant Executive Engineer. It is true that it is the SDO (Technical), who is responsible for checking the bills. Though the s aid Sri Nobel Deuri, Assistant Executive Engineer, was asked to take over the ch arge of the office of the Assistant Executive Engineer, the said Nobel Deuri had not come to take over the charge and, hence, there is no truth in the assertion of the writ petitioner that the respondent No. 7 had refused to hand over the c harge of the office of the SDO (Technical) (as the petitioner describes or the p ost of AEE (T/C), which the State respondents describe) to said Novel Deuri. In fact, it was by order, dated 24-08-2007, passed by the then Executive Officer th at the respondent No. 7 had been holding the charge of the office of the Assista nt Executive Engineer and had been accordingly discharging the duties of the off ice of the Assistant Executive Engineer (Technical). There has never been any co llusion between the respondent No.7 and 8 and respondent No.7 has nothing to do with the transfer of the petitioner. The petitioner’s allegation that it is beca use of the influence, which has been exerted by respondent Nos.7 and 8, that the petitioner has been transferred to Tezpur is false and incorrect. The relevant averments, made by the respondent No.7, which appear in his affidavit-in-opposit ion, read as under: 6. That the aforesaid statements made in the writ petition at paragraphs 5 and 7 are false and incorrect and the same are hereby denied by the deponent. Wi th regard to the allegation that the deponent is holding the charge of SDO (Tech nical) for which he is not eligible, it is stated that firstly, the deponent by the order dated 24-08-2007 of the then Executive Engineer was allowed to take ov er the charge of Assistant Executive Engineer (Technical Consultant) from the ea rlier senior Junior Engineer Sri Nareswar Pegu. As per the said order, the afore said arrangement was a purely temporary arrangement till the joining of the resp ective relievers. The question of being eligible to hold a post is only in respe ct of permanent and substantive appointment and not for temporarily discharging the duties by holding charge. The deponent was allowed to hold charge in exigenc ies of service due to the non availability of the appropriate incumbent. Accordi ngly, the deponent by following the appropriate procedure, received the charges of the Assistant Executive Engineer (Technical Consultant). 7. That with regard to the allegation that in spite of one Sri Nobel Deori being asked to take over the charge of Technical Consultant of the Division, the deponent had not handed over the charge, it is stated that the same is incorrec t and it is deliberate misrepresentation of fact by the writ petitioner. The wri t petitioner by his Office Order No. 7 of 2009-10 dated 09-04-2009 had requested Sri Nobel Deori to take over the charge of Technical Consultant of the Division from the deponent. But inspite of the same, Sri Deori did not come forward to t ake over the charge and neither he had reported in the office of the Executive E ngineer. Thereafter, the writ petitioner by another office order No. 32 of 2008- 09 )SIC) dated 23-07-2009 had issued an order that the deponent is entrusted wit h the work of technical checking of all bills and estimates in addition to his o wn duties. Pursuant to the said order of the writ petitioner, the deponent conti nues to discharge of work of technical checking of bills. 9. In order to show that there has been an illegal nexus between the respon dent Nos.7 and 8, he (the petitioner) has been transferred as a result of the co llusion between the respondent Nos.7 and 8 and that respondent No.7 had refused to handover the charge of the office of the SDO (Technical), i.e., AEE (T/C), th e petitioner has placed on record a letter, dated 18.09.2009, to the petitioner by said Sri Nobel Deuri (who was to replace the present petitioner), alleging to the effect that respondent No. 7 had refused to hand over the charge. The petit ioner has also placed on record a copy of the letter of the Account Officer, add ressed, amongst others, to the respondent No. 7, alleging to the effect that he (respondent No. 7) had been engaging huge number of MR and WC workers regularly. A letter, dated 21.01.2009, has also been placed by the petitioner, whereby the petitioner had directed the respondent No.7 to offer his explanation as regards an accident, which had occurred, wherein one person had died and another person had been injured, the said accident, according to the letter, dated 21.01.2009, having taken place due to negligence in supervision of the work of the road, in question, by the respondent No.7. 10. The petitioner has further placed on record a letter, dated 16-03-2010, whereby he has written to the respondent No. 7 that despite instructions given t o him, he has not handed over the charge to the officer to whom he was directed to hand over charge. In order to sustain his accusation that the respondent No.7 had been passing the bills of the respondent No.8 without even being competent in law to do so, the petitioner has placed on record copies of the bills, which had been earlier submitted by respondent No. 7 without obtaining signatures of t he Assistant Executive Engineer, though no bill can be passed by a Junior Engine er until the time it is counter-signed by the Assistant Executive Engineer. 11. We have heard Mr. N Dutta, learned Senior counsel, assisted by Ms. S.P. Hussain, for the petitioner, and Mr. J Patowari, learned Standing Counsel, PWD, appearing on behalf of the respondent Nos. 1 to 4. Heard also Mr. M Bhuyan, lear ned counsel for the respondent No. 5, and Mr. AM Buzarbarua, learned counsel for the respondent No. 7. 12. While considering the present writ petition, it is of great significance to note that having noticed the fact that respondent No. 7 has remained undistu rbed in his place of posting, at Lakhimpur, for last more than two decades, this Court raised certain queries and responding thereto, Mr. Patowari, learned Stan ding Counsel, appearing on behalf of the respondent Nos. 1 to 4, has produced a copy of notification, dated 31-01-2011, which indicates that respondent No. 7 ha s, now, been transferred and posted as, Junior Engineer (Civil), at Dhemaji SR D ivision, which was erstwhile Sub-Division of the district of North Lakhimpur. As regards the question as to why the respondent No. 7 was never posted out earlie r, there is no satisfactory response from the State respondents except that Juni or Engineers are not, ordinarily, transferred from their respective place of pos ting. To a specific query made by this Court if Junior Engineers, as a matter of policy, hold non-transferable posts, the State respondents replied in the negat ive. Thus, the respondent No. 7, despite existence of a policy of his transfer, just like any other Government employee, on completion of tenure of three years, retained at one and the same place for more than two decades and this dichotomy could not be convincingly explained by the State respondents. 13. Be that as it may, the question for consideration before this Court is w hether the impugned transfer order suffers from any illegality, mala fide, non-a pplication of mind and/or contrary to the Government’s policy decision. It needs to be noted, in this regard, that according to the State respondents and also a ccording to the records, which have been made available, approval of the Chief M inister was, indeed, obtained before the transfer was made. The impugned transfe r order cannot, therefore, be interfered with on the ground that the said transf er order has been made without approval of the Chief Minister, though such an ap proval is warranted in terms of the relevant Government policy and guidelines. 14. What, however, remains to be determined and decided is the legality of t he transfer order in the facts and circumstances of the present case. While cons idering this aspect of the matter, it may, once again, be noted that according t o the State respondents’ affidavit, the petitioner has been transferred on the g round of unsatisfactory performance. This statement has been made on affidavit b y none other than the Chief Engineer of the department concerned. It is, therefo re, clear that if the State respondents’ affidavit does not disclose complete fa cts, one cannot, but draw the inference that the facts do not exist as alleged b y the State respondents. 15. It needs to be noted, now, that according to the affidavit, which the re spondent No. 3 has sworn, the allegation, which he has made against the petition er as regards the petitioner’s unsatisfactory performance, is based on the infor mation received by the respondent No. 3. As regards the source of information, t he State respondents are vague if not completely silent inasmuch as the affidavi t does not clearly disclose if there is any material to show that the petitioner ’s transfer was because of his own satisfactory performance. The affidavit, thus , filed resisting the writ petition is vague and does not disclose necessary mat erials. Perforce the Court has to look into the record and the same has been exa mined by the Court. What the records reveal is that a letter was sent to the Min ister, PWD, Assam, i.e., the Minister of the concerned department, on 02-02-2010 , by the Minister of Parliamentary Affairs, Assam, suggesting that the petitione r be transferred as there are lots of public allegations raised against the peti tioner, because the petitioner has been found very irregular in attending his du ties and this had been delaying implementation of the public schemes. Similar le tter was also addressed by the Parliamentary Affairs Minister to the Commissione r & Special Secretary of the Department concerned, namely, PWD, Assam. A letter was also given by the Parliamentary Affairs Minister to the Chief Minister repea ting the same allegations and suggesting the transfer of the petitioner, whereup on the Chief Minister requested the concerned Minister, i.e. the Minister, PWD, to look into the matter. Following what has been indicated above, a note sheet w as prepared on record stating to the effect that the present petitioner was very irregular in attending his duties and it hampered the implementation of public scheme, there are also public allegations against the petitioner as stated by th e Minister, Parliamentary Affairs, and that the Minister, Parliamentary Affairs, has recommended to post out the petitioner. Based on this letter, further notes were prepared and laid before the concerned Minister, namely, Minister, PWD, wh o, in turn, sent a note to the Chief Minister of the State, on 31-05-2010, stati ng to the effect that the petitioner had not been able to maintain the pace spec ially under PMGSY schemes and the works are suffering badly. Thus, the proposal for transfer of the petitioner, in terms of the impugned order, was made. The pr oposal was accordingly approved on 03-06-2010, by the Chief Minister and the imp ugned transfer order was issued. 16. Close examination of the record reveals that the transfer order was made on the basis of the allegation made by, and the suggestion received from the Pa rliamentary Affairs Minister, who was not the Minister concerned for the Public Works Department. Surprisingly, however, though the contents of the letter of th e Parliamentary Affair Minister have been reiterated, there has been, at no stag e, any query made by the Department concerned, i.e., PWD. There is not even a sh red of paper or report or any contemporaneous material indicating that the petit ioner’s performance was found to be unsatisfactory. The basis for the impugned t ransfer order, therefore, remained the said letters of the Parliamentary Affairs Minster. Even the Parliamentary Affairs Minister gave no contemporaneous materi al to support the allegation and/or fortify the allegations made by him against the petitioner. While it is the responsibility of every department of the Govern ment to take action against its employee, it also casts a corresponding duty, ha d every Department of the Government, to protect an employee of the Department i f the employee happens to be innocent. The Department concerned, in the present case, could not have, therefore, absolve itself of the responsibility to ascerta in the truth or correctness of the allegations made against the petitioner. No s atisfaction, prima facie or otherwise, was recorded by any of the authorities of the department to which the petitioner belongs. That the petitioner’s transfer was entirely at the behest of the Minister, who was not the Minister concerned w ith the work of the petitioner cannot be guided. It is not the suggestion of thi s Court that on the letter or on the request of a Minister of a Department other than the Department to which a Government employee belongs, such an employee ca nnot be transferred. What is, however, curious to note is that no material or no report existed on record to show that the petitioner’s performance was