Government can review their decision regarding promotion and transfer, backed up by reason and facts: Gauhati High Court

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 THE GAUHATI HIGH COURT 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 KAMRUPASSAM 3:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT DISPUR GUWAHATI 781006 4:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENTCHANDMARI GUWAHATI Advocate for the Petitioner : S N SARMA Advocate for the Respondent Page No.# 2 10 Linked Case : WP(C) 5108 2020 S O LATE SAILYADHAR KHARGARIA RESIDENT OF ADARSHA NAGAR Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM 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 DEPARTMENTCHANDMARI GUWAHATI 3 4:SRI JAGAT CH. DAS EXECUTIVE ENGINEERHeard 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 EngineerPWD and posted as Executive EngineerPWRD Morigaon District Territorial Road Division Morigaon w.e.f. the date the petitioner took charge from the respondent No Indian Kanoon 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 Engineerto the senior most AEof 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 EEPWRD 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 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 1999GLT 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 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.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. 3 2021 has submitted a Prescription dated 18.11.2020 issued by one Dr. Sanjay Kishor and a Prescription dated 20.11.2020 issued by Dr. B.D. Goswami. It is surprising that while the application made by the respondent No. 4 for cancellation of his transfer was made vide letter dated 09.11.2020 the medical prescriptions are of subsequent dates i.e. 18.11.2020 and 20.11.2020 The above being said the medical prescriptions shows that the petitioner has been asked to have medicines and there is nothing to show that the petitioner cannot work elsewhere just because he is having liver cirrhosis. Further the Prescription dated 20.11.2020 issued by Dr. B.D. Goswami shows that the petitioner has not been regular in his follow upas the prescription states "CLD Ethanol related) IRREG follow up". The medical prescriptions that have been annexed to the Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 respondent No. 4 s application for vacating the interim order and the stand taken by the respondent No. 4 clearly show that his alleged ailment has not prevented him from doing his work. The medical prescription does not show that the petitioner is incapable of doing his work. In fact the note dated 10.12.2020 written by the Deputy Secretary states as follows: Later it was understood that Sh. Jagat Ch. Das has been suffering from liver cirrhosis and he has been entrusted with lots of ongoing division works in the Morigaon District which would be affected due to the transfer of Sh. Das. Moreover Sh. Jagat Ch. Das has only about 14 more months of Government servicebefore his superannuation. Hence in the interest of public service the transfer of Sh. Jagat Ch. Das EE(C) has been stayed and consequently the posting on promotion of Sh. Kharghari has also been cancelled vide Notification No. CON.41 2012 Pt III 11A dated The above note clearly shows that the work of the respondent No. 4 is not impeded by his aliment Instead the State respondents have taken a new ground to cancel his transfer order which was never an issue. This is not to say that a Government cannot review its own decision. However the same has to be backed up by reason and facts and cannot be arbitrary 13. The petitioner has levelled allegation of malafide against the respondent No. 5 who is a local MLA. In the case of Mohd. Masood Ahmad vs. State of U.P. reported in Page No.# 7 108 SCC 150 the Apex Court has held that even if a person is transferred on the recommendation of an MLA that by itself would not vitiate the transfer order as it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case the allegation is that the MLAhas a role to play in cancellation of the transfer of the respondent no.4 which in turn effected the posting of the petitioner. The above being said as the petitioner has made an allegation of malafide against the respondent No. 5 the records are being perused. The official records have been produced before this Court. In the official records there is no mention of the respondent No. 5. As such this Court on the basis of the official records that are produced herein finds that there is nothing to prove the allegation of malafide made by the petitioner against the respondent no.5. In the case of State of U.P. Vs. Gobardhan Lal reported in 2011) 4 SCC 402 the Apex Court has held that transfer is the prerogative of the authorities concerned and the court should not normally interfere except when the transfer order is shown to be vitiated by malafides in violation of any statutory provision or had been issued by an authority not competent to issue the order of transfer. This Court finds that none of the above conditions have been attracted in the present case 14. It is an admitted fact that the normal tenure of posting of a Government servant is usually 3 years. It is also seen that the promotion posting of the writ petitioner and transfer of the respondent No. 4 vide Notification dated 06.11.2020 was part of the wholesale posting and transfer of officers officials made in public interest and in the exigency of service. However the cancellation of the transfer of the respondent No. 4 does not seem to have been made in public interest or due to Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 exigency of service inasmuch as while the respondent No. 4 had prayed for cancellation of his transfer on grounds of his ailment and on the ground that he was going to retire on 31.12.2021 the State respondents have also added a new ground i.e. respondent No. 4 had been Page No.# 8 10 entrusted with lots of ongoing development works which would be effected. In the case of State of Assam Vs. Dilip Kumar Sarma & Ors. reported in 2011GLT 724 the Division Bench of this Court has held that a transfer order can be interfered with if it is not made in public interest or due to exigency of service. However in the present case the transfer of the respondent No. 4 and the posting of the petitioner has been cancelled 15. The submission made by the counsel for the respondent No. 4 that the respondent No. 4 s transfer order cannot be acted upon due to the directions laid down by the Election Commission of India requires that para 6 of the letter dated 26.02.2021 issued by the Election Commission of India is reproduced. The same is accordingly reproduced below: 6. "The Commission further directs that there shall be a total ban on the transfer of all officers officials connected with the conduct of the election. These include but are not restricted to: i) The Chief Electoral Officer and Additional Joint Deputy Chief Electoral Officers ii) Divisional Commissioners iii) The District Election Officers Returning Officers Assistant Returning Officers and other Revenue Officers connected with the Conduct of Election iv) Officers of the Police Department connected with the management of election like range IGs and DIGs Senior Superintendents of Police and Superintendents of Police Sub Divisional Police Officers like Deputy Superintendents of Police and other Police O f f i c e r s w h o a r e d e p u t e d t o t h e C o m m i s s i o n u n d e r S e c t i o n 2 8 A o f t h e Representation of the People Act 1951 v) The transfer orders issued in respect of the above categories of officers prior to the date of announcement but not implemented till date should not be given effect to without obtaining specific permission from the Commission in this regard vi) This ban shall be effective till the completion of the election. The Commission further directs that the State Governments should refrain from making transfers of senior officers who have a role in the management of election in the State vii) In those cases where transfer of an officer is necessary on account of administrative exigencies the concerned State Government may with full Page No 9 10 justification approach the Commission for prior clearance." This Court is of the view that Para 6(v) of the said directions would not be applicable to the case in hand inasmuch as there is nothing to show that the petitioner is connected with the conduct of Assembly Elections to be held in the State of Assam and also due to the Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 fact that there has been a stay of the impugned Notifications dated 12.11.2020 and 25.11.2020 vide Order dated 01.12.2020 passed by this Court It is noticed that though this Court had stayed the Notification dated 12.11.2020 and 25.11.2020 which would in effect revive the earlier transfer order of the respondent No. 4 issued vide Notification dated 06.11.2020 it is surprising to learn from the pleadings that respondent No. 4 is continuing to do work as EEPWRD Morigaon District Territorial Road Division 16. Be that as it may on considering the facts this Court is of the view that though the manner in which the petitioner s posting was cancelled vide Notification dated 12.11.2020 and his subsequent posting made vide Notification dated 25.11.2020 is not in public interest or due to exigency of service the petitioner does not have a right to be posted to a particular place. Further there is nothing to show that any legal right of the petitioner has been violated by the respondents by changing his place of posting from Morigaon District Territorial Road Division to Bakulia Road Division Karbi Anglong. Due to the above reasons this Court is not inclined to exercise its discretion in the present case 17. As the petitioner has not been paid his salary from the month of December 2020 the respondents are directed to pay to the petitioner his arrear salary and entitlements within a period of 2weeks from the date of receipt of a copy of this order 18. The writ petition is accordingly dismissed JUDGE Page No.# 10 10 Comparing Assistant Indian Kanoon 

Summary: The transfer of any public officer or employee is decided upon by the authorities, and can only be challenged on grounds of Public Interest or due to exigency of service. Private Interest or Will cannot determine the place of posting nor can a review of a posting order by the Government be considered arbitrary until the facts or reason say otherwise.  This auspicious judgment was passed by the Gauhati High Court in the matter of Jagat Chandra Das V. Anupam Khargaria &amp; Ors. [I.A.(Civil)/3/2021] by Honourable Justice Michael Zothankhuma. The petition was filed against the withdrawal of promotion and subsequent transfer and promotion to another place by the PWD officials who accepted the request of the respondent for such posting. This was considered to be illegal and violative of Public Interest.  The Court in response to the petition vis an order stayed this transfer and promotion and directed the officials to explain by way of an affidavit, as to why the promotion and transfer were altered and issued. The Petitioner alleged that the transfer order was issued under mala fide intention and hence was an illegal posting order, which is not in public interest, therefore, should be set aside. The respondent on whose request the transfer was allegedly decided was contended to be suffering from Liver Cirrhosis and hence as per Government policy was allowed to remain in his last place of posting till his retirement. He relied on Narayan Chowdhury Vs. State of Tripura &amp; Ors. for stopping the transfer, in response to which the court stated that, “The facts of the above case are not similar to the facts of this case, as the hometown of the petitioner is not the place of working. Thus, the case is not applicable. Further, there is no Government Policy 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.”  Additionally, the court observed that, “The alleged ailment of the respondent did not prevent him from doing his work. And the State respondents have taken a new ground to cancel his transfer order which was never an issue.” The court relied on the case of State of U.P. Vs. Gobardhan Lal, (2011) 4 SCC 402, to assert that every transfer at the instance of an M.P. or MLA would not be considered to be vitiated since transfer is the prerogative of the authorities concerned and the court should not normally interfere except when the transfer order is shown to be vitiated. The Court was of the view that here, “The cancellation of the transfer of the respondent does not seem to have been made in public interest or due to exigency of service, since the State respondents added a new ground, i.e., respondent was entrusted with lots of ongoing development works which would be effected” but “the petitioner does not have a right to be posted to a particular place. Further, there is nothing to show that any legal right of the petitioner has been violated by the respondents, by changing his place of posting.”