Putul Mahanta vs The State Of Assam And 6 Ors
2021 Latest Caselaw 1287 Gua

                                                                 Page No.# 1/9

GAHC010047612021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WP(C)/1992/2021

         PUTUL MAHANTA
         S/O. LT. KARUNAKAR MAHANTA, PERMANENT R/O. HOUSE NO.1,
         KARMABIR BORDOLOI PATH, WIRELESS, RUKMININAGAR, DISPUR,
         GUWAHATI-781006, DIST. KAMRUP (M), ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, HEALTH AND
         FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-781006.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

          HEALTH AND FAMILY WELFARE DEPTT.
          DISPUR
          GUWAHATI
          DIST. KAMRUP (M)
          ASSAM-781006.

         3:THE ADDL. SECRETARY TO THE GOVT. OF ASSAM

          HEALTH AND FAMILY WELFARE DEPTT. (B) DISPUR
          GUWAHATI
          DIST. KAMRUP (M)
          ASSAM-781006.

         4:THE SPECIAL SECRETARY HEALTH AND FAMILY WELFARE DEPTT.
         GOVT. OF ASSAM

          DISPUR
          GUWAHATI-781006.
                                                           Page No.# 2/9

            5:THE DIRECTOR OF MEDICAL EDUCATION ASSAM

             6 MILE
             KHANAPARA
             GUWAHATI
             DIST. KAMRUP (M)
             ASSAM-781022.

            6:THE PRINCIPAL CUM CHIEF SUPERINTENDENT

             GAUHATI MEDICAL COLLEGE AND HOSPITAL
             GUWAHATI
             DIST. KAMRUP (M)
             ASSAM-781006.

            7:KANAK CHANDRA DAS
             S/O. LT. PARBA NANDA DAS
             PROFESSOR OF FORENSIC MEDICINE
             JORHAT MEDICAL COLLEGE ADN HOSPITAL
             DIST. JORHAT
            ASSAM-785001

Advocate for the Petitioner   : MR. B D KONWAR SR. ADV.

Advocate for the Respondent : SC, HEALTH




             Linked Case : WP(C)/3592/2020

            PUTUL MAHANTA
            S/O LT. KARUNAKAR MAHANTA
            PERMANENT R/O HOUSE NO. 1
            KARMABIR BORDOLOI PATH
            WIRELESS
            RUKMININAGAR
            DISPUR
            GUWAHATI-781006
            DIST. KAMRUP (M)
            ASSAM


             VERSUS

            THE STATE OF ASSAM AND 6 ORS.
                                                               Page No.# 3/9

REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OFO ASSAM
HEALTH AND FAMILY WELFARE DEPTT. DISPUR GUWAHATI-781006

2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
 HEALTH AND FAMILY WELFARE DEPTT. DISPUR
 GUWAHATI
 DIST. KAMRUP (M)
ASSAM
 781006
 3:THE ADDL SECRETARY
TO THE GOVT. OF ASSAM
 HEALTH AND FAMILY WELFARE DEPTT. DISPUR
 GUWAHATI
 DIST. KAMRUP (M)
ASSAM
 781006
 4:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
6TH MILE
 KHANAPARA
 GUWAHATI
 DIST. KAMRUP (M)
ASSAM
781022
 5:THE PRINCIPAL CUM CHIEF SUPERINTENDENT
ASSAM MEDICAL COLLEGE AND HOSPITAL DIST. DIBRUGARH
ASSAM
 786002
 6:THE PRINCIPAL CUM CHIEF SUPERINTENDENT
GAUHATI MEDICAL COLLEGE AND HOSPITAL GUWAHATI
 DIST. KAMRUP (M)
ASSAM
 781006
 7:KANAK CHANDRA DAS
S/O LT. PARBA NANDA DAS
 PROFESSOR OF FORENSIC MEDICINE
 JORHAT MEDICAL COLLEGE AND HOSPITAL
 DIST. JORHAT
ASSAM
 785001
 ------------
Advocate for : MR. B D KONWAR SR. ADV.
Advocate for : SC
 HEALTH AND F W appearing for THE STATE OF ASSAM AND 6 ORS.
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                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 01.04.2021

Heard Mr. B.D. Konwar, learned Senior Counsel, assisted by Mr. A. Chakraborty, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned standing counsel for the respondent nos. 1 to 6 and Mr. J. Roy, learned counsel appearing for respondent no.7.

2) Both these writ petitions are inter-connected and accordingly, the matter has been listed together. At the instance of the learned Senior Counsel/ counsel representing the parties, the matter has been heard for disposal at the admission stage.

3) By filing WP(C) 3592/2020, the order No. HLB.472/2008/198 dated 01.09.2020 passed by the Addl. Secretary to the Govt. of Assam, Health and Family Welfare Department (respondent no.3) has been put to challenge. By the said order, the respondent no.3, by referring to the order dated 03.12.2019 passed by this Court in WA 339/2019, took a decision to cancel the notification No. HLB.544/2018/15 dated 18.11.2019 in larger public interest. By a subsequent notification bearing No. HLB.09/2020/148 dated 24.02.2021, the respondent no.7 was transferred and posted as Professor, Department of Forensic Science Medicine, GMCH against the vacant post which was assailed by filing WP(C) 1992/2021.

4) The dispute raised in this two writ petitions are in a narrow compass. The coordinate Bench of this Court by order dated 29.11.2019 passed in WP(C) 8543/2019 [Kanak Chandra Das (respondent no.7) Vs. The State of Assam and Ors.], had interfered with the previous order of transfer dated 18.11.2019, thereby transferring the present petitioner from Assam Medical College and Hospital, Dibrugarh and posting him as Professor, Forensic Science Medicine at GMCH by holding that the said order of transfer was not made in public interest, but for collateral purpose and with oblique motive, which is vitiated by abuse of Page No.# 5/9

power and, as such, by holding the transfer order to be arbitrary, it was set aside. It may be mentioned that the said finding was arrived at a finding that the transfer order was passed pursuant to endorsement by the Minister for State of Health Department. The present petitioner, being aggrieved by the said order, had preferred an intra- Court appeal which was registered as WA 339/2019 [Dr. Putul Mahanta (petitioner herein) Vs. State of Assam & Ors.], and this Court by judgment and order dated 03.12.2019 arrived at a finding that while the Minister for State of Health Department had made endorsement in favour of the petitioner herein but the Minister of Health had made endorsement in favour of the respondent no. 7 herein and accordingly, by interfering with the order dated 29.11.2019 passed in WP(C) 8543/2019, the matter was remanded back to the Health Department for a fresh consideration of the petitioner and the respondent no. 7.

5) Therefore, the respondent no. 3 by an order dated 01.09.2020, taking note of the judgment and order dated 03.12.2019 passed by the Division Bench of this Court in WA 339/2019, had cancelled the notification dated 18.11.2019. The operative part of the said order is quoted below:

"Now, therefore, after considering all aspects of the matter, particularly the current public health emergency due to Covid-19 pandemic, the Government in Health & Family Welfare Department has decided not to consider the petition of Dr. Putul Mahanta, Professor, Department of Forensic Medicine, Assam Medical College & Hospital and Dr. Kanak Ch. Das, Professor, Department of Forensic Medicine, Jorhat Medical College & Hospital and cancel the Government notification No. HLB.544/2018/15 dated 18.11.2019, in large public interest.

Dr. Putul Mahanta is directed to join in the post of Professor, Department of Forensic Medicine, Assam Medical College & Hospital immediately.

This order is issued in pursuance of the direction of the Hon'ble Gauhati High Court order vide dated 03.12.2019 in WA No. 339/2019."

6) Thereafter, as indicated above, by order dated 24.02.2021, the respondent no. 7, who was serving as Professor in the Department of Forensic Science Medicine, Jorhat Medical College and Hospital was transferred and posted as professor Department of Forensic Page No.# 6/9

Science Medicine, Guwahati Medical College and Hospital against the vacant post and the respondent no.7 was released from his place of posting with immediate effect.

7) Accordingly, the Court called upon to determine if both the orders impugned in these two writ petitions were in consonance to the direction contained in order dated 03.12.2019 passed in WA 339/2019.

8) Although arguments had advanced at length, but having noted to that the only issue to be decided by the Court is whether the two departmental orders were in consonance to the directions contained in order dated 03.12.2019 passed in WA 339/2019, the Court is not inclined to burden this order with the gist of submission made by the learned Senior Counsel for the petitioner as well as the learned departmental standing counsel and the learned counsel for the respondent no.7.

9) Having noted the contents of paragraph 8 of the order dated 03.12.2019 in WA 339/2019, it is seen that this Court had directed the departmental authorities to give due consideration to the respective representations of the appellant as well as the respondent no.7 herein and to take the administrative decision as to hold the transfer and posting in the vacant post of Professor of Forensic Science Medicine Department in the GMCH. Therefore, the decision to cancel the order dated 18.11.2019, purportedly in larger public interest is not sustainable because it is not in dispute that the post of Professor of Forensic Science Medicine at GMCH is lying vacant since 31.08.2018. This Court is conscious of the fact that it is the prerogative of the employer to recall a transfer order. However, in the present circumstances when the Division Bench of this Court had issued a specific direction to consider the case of the petitioner as well as the respondent no.7, it was not open for the departmental authorities to take an alternative way without obtaining prior leave of this Court. The departmental authorities, specifically the respondent no. 3 herein had no justifiable reason to disobey the direction contained in paragraph 8 of the order dated 03.12.2019 in WA 339/2019, which is quoted below:

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"8. As we arrive at a conclusion that there were respective endorsements by two Ministers in favour of both the candidates, we are of the view that the ends of justice would be met if the Departmental authorities give a due consideration to the respective representations of the appellant as well as the respondent No.8 and take their reasoned administrative decision as to who should be transferred and posted in the vacant post of Professor of Forensic Medicine Department in the Gauhati Medical College and Hospital. As we have required the Departmental Authorities to give a reconsideration, we also set aside the transfer order dated 18.11.2019 transferring the appellant as well as the order dated 29.11.2019 of the learned Single Judge in WP(C) No.8543/2019. The required consideration of giving a due consideration to both the appellant and the respondent No.8 be done within a period of 7 days from today. A copy of the reasoned order to be passed as directed be provided to both the appellant as well as respondent No.8."

10) The issue can be revisited with another angle. If the departmental authorities had already given due consideration to the order dated 03.12.2019 passed by the Division Bench of this Court, on a subsequent date, it was not open to the respondent no.2 to consider the representation by the respondent no.7 and pass order dated 24.02.2021 to transfer and post the respondent no. 7 as Professor of Department of Forensic Science Medicine, GMCH without considering the candidature of the petitioner herein. Therefore, the order No. HLB.09/2020/148 dated 24.02.2021, passed by Special Secretary, Health & Family Welfare Department, Govt. of Assam is not sustainable, being not in consonance with the order dated 03.12.2019 passed by this Court in WA 339/2019. The said order amounts to colourable flouting of the said order dated 03.12.2019, by masking camouflaging it with order No. HLB.472/2008/198 dated 01.09.2020.

11) The learned departmental standing counsel has produced the original records relating to transfer and posting of faculties of Medical Colleges of Assam. The said file, which was produced by the Health and Family Welfare Department (B), Assam, the draft does not contain any note that the issue of transfer of the respondent no. 7 was considered along with the prayer for transfer made by the petitioner. The record reveals that the wife of the respondent no.7 has submitted a representation before the Minister of Health and Family Welfare, Assam and there is an endorsement to the respondent no. 2 to allow. It is submitted Page No.# 8/9

at the Bar by the learned departmental standing counsel that said endorsement was made by the Minister concerned. Therefore, the consideration of the candidature of the respondent no. 7 alone is against the direction contained in order dated 03.12.2019 passed by the Division Bench.

12) Although it is a prerogative of the political person to make recommendation but the official who are required to run the department are excepted to take their own decision in the matter without being influenced by the recommendation of political persons.

13) Therefore, in light of the discussion above, while holding that the order of transfer of the respondent no. 7 is found contrary to the direction contained in paragraph 8 of the judgment and order dated 03.12.2019 passed in WA 339/2019, the Court has no hesitation to set aside and quash the orders bearing No. HLB.472/2008/198 dated 01.09.2020 by the respondent no. 3 impugned in WP(C) 3592/2020 as well as the notification No. HLB.09/2020/148 dated 24.02.2021 impugned in WP(C) 1992/2021. However, taking note of the fact that the post of the Professor, Department of Forensic Science Medicine at GMCH is lying vacant, the appointment of the petitioner to the said post is permitted to be continued for 1(one) week after election process in the State ends on 02.05.2021. The respondent no. 1 shall now pass a fresh order for considering the transfer and posting of the petitioner as well as the respondent no. 7 herein to the post of professor of Forensic Science Medicine, Department in the GMCH in terms of direction contained in paragraph 8 of the judgment and order dated 03.12.2019 passed by this Court in WA 339/2019. A fresh decision shall be taken

by the respondent no. 2 within 10th of May, 2021.

14) These two writ petitions stands allowed by making the Rule absolute on terms as indicated above.

15) The records produced by the learned standing counsel for the Finance Page No.# 9/9

Department is returned.

JUDGE

Comparing Assistant