WP(C) 1007/2011 BEFORE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. S.S. Dey, learned counsel for the petitioner as well as MR. D. K.Mishra, learned Sr. Counsel assisted by Mr. K. Goswami, learned counsel appear ing for the respondent No. 6. I have also heard Mr. D.K. Saikia, learned Standin g Counsel, Health & Family Welfare Department. The petitioner who is a professor of Medical College is aggrieved by the Annexure- V notification dated 17.2.2011, by which within eight days of his tra nsfer from Guwahati to Dibrugarh he has again been transferred to Jorhat. By the 2nd part of the notification the respondent No. 6, who has been serving at Dibr ugarh since 1987 except for the brief period, has been retained at Dibrugarh, al though he was earlier transferred to Jorhat by order dated 9.2.2011. By Annexure - I order dated 9.2.2011 the petitioner, Professor of Medici ne GMCH, Guwahati was transferred and posted in the same capacity at AMCH, Dibru garh. Pursuant to the said order the petitioner was released from GMCH and he to ok over charge at AMCH Dibrugarh on 17.2.2011. When the matter rested thus, the impugned notification dated 17.2.2011 w as issued. Prior to that by order dated 9.2.2011 the respondent no. 6 was promot ed to the rank of Professor and was posted at Jorhat Medical College, Jorhat. While Mr. Dey, learned counsel for the petitioner submits that no public interest is involved in issuing the impugned order dated 17.2.2011 but the same has been done to accommodate the respondent No. 6. Both Mr. Mishra, learned cou nsel representing the respondent No. 6 as well as Mr. D.K. Saikia, learned Stand ing Counsel, Health & Family Welfare Department submit that the order has been i ssued in the interest of public service and that the same does not involve any m alafide and/or colourful exercise of power. Since the impugned notification dated 17.2.2011 will have to be judged on the ba sis of the reason assigned in the file in which the said order was initiated and passed, the file was called for and Mr. Saikia, learned Standing Counsel, Healt h has produced the file. Before dealing with the file it will be appropriate to refer to the stand of the official respondents in their counter affidavit. The s aid affidavit has been sworn by the Deputy Secretary Health & Family Welfare(A) Department. It has been stated in the affidavit that while the petitioner was posted at GMCH, Guwahati, he was on leave most of the time and that while the petition er was posted to Dibrugarh he took recourse to private practice. It has also bee n stated that the moment he was posted at Dibrugarh he immediately recovered fro m his illness on the ground of which he had taken leave. The aforesaid allegation made in the affidavit will have to be judged in the context of the reasons assigned in the file towards issuing the impugned or der dated 17.2.2011. As against the transfer and posting of the petitioner from GMCH, Guwahat i to AMCH, Dibrugarh in the same capacity, the respondent No. 6 was posted at JM CH on promotion. The file has revealed that the DPC was constituted to consider the promotion of the eligible incumbents and thereafter as per the recommendatio n of the selection committee the eligible doctors were promoted and transferred. For effecting such promotions the file was processed and eventually the orders of postings indicated therein were approved by the Chief Minister as per the not es furnished by the departmental minister. It was on the above basis the transfer and posting orders of the petitioner and the respondent No. 6 were issued. Suddenly a note was put up in the file to the Joint Secretary indicating the draft impugned order and the same was accepted by the Commissioner and Secretary on 16.2.2011. It was on that basis the impugned notification dated 17.2.2011 was issued. Mr. Saikia, learned Standing Counsel has drawn my attention to the endorsement d ated 17.2.2011 indicating the telephonic instruction of the departmental ministe r to issue the order. There is some dispute whether the particular note dated 17 .2.2011 is the subsequent insertion in the file or it was originally there in th e file. Interestingly, the draft impugned order was prepared and approved by the Commissioner and Secretary on 16.2.2011 and on that basis the impugned order wa s issued, but the purported telephonic approval of the minister was on 17.2.2011 . On perusal of the entire file nothing is discernible as to for what reas ons the petitioner within eight days of joining at Dibrugarh was required to be transferred to Jorhat or the respondent No. 6 was required to be retained at Dib rugarh although he is at Dibrugarh from 1987. Needless to say that the impugned order will have to be judged on the ba sis of the reason assigned in the order or available in the file. Contrary to th e stand in the affidavit no reason is discernible in the file. Although Mr. Saik ia learned Standing Counsel, Health has submitted that the impugned order was is sued on the basis of the information collected by the departmental minister and as per his telephonic instruction, as discussed above, everything was finalized at the level of the Joint Secretary and the Commissioner and Secretary by the by the aforesaid note dated 16.2.2011. It was only after such approval a subsequent insertion in the file was made to t he effect that the departmental minister telephonically instructed to issue the order. The said endorsement is dated 17.2.2011. The above aspect of the matter requires special mention in view of the fact that in case of other case(s) any modification etc either there was the proposal in the file or there was discussions and approval of the departmental minister. Not hing of this sort happened in the instant case. As noted above, the promotion and posting of the respondent No. 6 was do ne with the approval of the Chief Minister. However, while modifying the order n o such approval was obtained from the Chief Minister. In terms of the Office Mem orandum dated 22.2.2002 in case of any modification to the transfer orders alrea dy issued, such modification should be made with the approval of the Chief Minis ter. In the instant case the promotion and posting of the respondent No. 6 was m ade with the approval of the Chief Minister but the modification was without his approval. For all the aforesaid reasons, I am inclined to allow the writ petition by setting aside and quashing the impugned order dated 17.2.2011(annexure- V). C onsequently the petitioner who has already joined at Dibrugarh will continue the re who is protected by the interim order. Because of the stalemate created by the impugned order there might be so me gap period in respect of joining and continuation in service of both the part ies. It is submitted by the learned counsel appearing for the respondent No. 6 t hat pursuant to the earlier order dated 9.2.2011, the respondent No. 6 was about to move to Jorhat but because of the subsequent impugned order dated 17.2.2011 he could not do so and thus there is a gap period which may have the effect of b reak in his service. It is made clear that there will be no such break in servi ce and the authority taking care of the situation will pass appropriate order. Writ Petition is disposed of.