Mrinmoy Lekharu vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2020 Gua

                                                               Page No.# 1/6

GAHC010129912021




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

                            Case No. : WP(C)/4294/2021

         MRINMOY LEKHARU
         S/O LATE KHANINDRA CHANDRA LEKHARU,
         RESIDENT OF BELTOLA, DIST KAMRUP (M) ASSAM 781028



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM,
         SECRETARIAT, DISPUR GUWAHATI 06

         2:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          IRRIGATION DEPT
          SECRETARIATE
          DISPUR
          GUWAHATI 06

         3:THE DEPUTY SECRETARY (E)
         TO THE GOVT. OF ASSAM
          IRRIGATION DEPT
          SECRETARIAT
          DISPUR
          GUWAHATI 06

         4:SRI DIPANKAR BORDOLOI
         ASSTT. EXECUTIVE ENGINEER
         O/O THE GOLAKGANJ SUB DIVISION (IRRIGATION DEPT)
         AGOMONI
          GOLAKGANJ
          783334

         5:SRI DIPAK DEKA
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            ASSTT. EXECUTIVE ENGINEER (TC)
            O/O THE BARPETA DIVN. (IRRIGATION DEPT) SORBHOG
            BARPETA
            ASSAM 78131

Advocate for the Petitioner   : MR. T J MAHANTA

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 01.09.2021

Heard Mr. T.J. Mahanta, learned senior counsel, assisted by Mr. D. Mahanta, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned standing counsel for the Irrigation Department, respondent nos. 1, 2 and 3.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the legality of the transfer order dated 11.08.2021, thereby transferring and posting the petitioner as Assistant Executive Engineer, Golakganj Sub Division (Irrigation) vice private respondent no. 4.

3. Let notice returnable on 27.09.2021 be issued.

4. Requisite extra copies of the writ petition be served on the learned Standing counsel appearing for respondent nos. 1, 2 and 3. The petitioner shall take steps within 2 (two) days for service of notice on the private respondent nos. 4 and 5. In addition, the petitioner has the option to Page No.# 3/6

serve notice on the respondent nos. 4 and 5 by e-mail by routing the process through the registry of this Court and the said e-mail should be accompanied with PDF copy of the writ petition and upon service, an affidavit of service shall be filed prior to the next date fixed.

5. Heard both sides on the prayer for interim relief.

6. The learned senior counsel for the petitioner has submitted that by filing W.P.(C) 1716/2021, the petitioner had assailed notification no. IGN(E) 24/2021/5 dated 26.02.2021, by which the petitioner was transferred from his existing place of posting as AEE Nalbari Sub-Division (Irrigation) as AEE (TC), Barpeta Division (Irrigation), Sorbhog and that this Court by order dated 19.03.2021, had stayed the said transfer order. It is submitted that without obtaining leave of this Court, and in total disrespect and disregard to the said order dated 19.03.2021 passed by this Court in W.P.(C) 1716/2021, the respondent no. 2 had transferred and posted the petitioner from his present place of posting to Golakganj Sub Division (Irrigation), as Assistant Executive Engineer. It is submitted that if the impugned order is not interfered with, it would amount to permit the respondent no. 2 to overreach the interim orders passed by this Court during the currency of the said previous writ petition. It has been reiterated that no leave was obtained by the respondent authorities from this Court in W.P.(C) 1716/2021 to transfer the petitioner. It is also submitted that the transfer was illegal would be revealed from the fact that in W.P.(C) 1716/2021, the petitioner was transferred vice respondent no. 5 vide notification dated 26.02.2021, and that by the impugned notification dated 11.08.2021, the transfer of respondent no. 5 was made in the same place, i.e. Page No.# 4/6

at Nalbari Sub- Division (Irrigation), Nalbari.

7. The learned standing counsel for the respondent nos. 1 to 3 has opposed the interim prayer.

8. From the transfer notification dated 26.02.2021 (Annexure-1), it prima facie appears that the petitioner and the respondent no. 5 were transferred in place of each other. For the reasons assigned, the coordinate Bench of this Court by an ad interim order dated 19.03.2021 in W.P.(C) 1716/2021, had stayed the notification dated 26.02.2021 till further orders. However, the Court is unable to read the said order dated 19.03.2021 in W.P.(C) 1716/2021 and construe the same to mean that until further orders, transfer of the petitioner, which is an incidence of service had been stayed. The Court is also unable to interpret the order dated 19.03.2021 of this Court as if the Court had prohibited the respondent authorities to transfer the petitioner outside his present place of posting at Nalbari or that the Court had restrained the respondent authorities from transferring and posting the respondent no. 5 at Nalbari. This Court had only stayed the transfer of the petitioner vide notification dated 26.02.2021 impugned in W.P.(C) 1716/2021.

9. In the present case in hand, in the notification no. IGN(E)206/2021/20, it has been mentioned that " In the event of reorganization of Irrigation Department as per approval of the Hon'ble Cabinet and in the interest of public service, the following officers of Irrigation Department in the rank of Assistant Executive Engineer are hereby transferred and posted temporarily to the respective offices as mentioned against their names with Page No.# 5/6

immediate effect and until further orders." Accordingly, as many as 128 Assistant Engineers, including the private respondent nos. 4 and 5 were transferred. Therefore, when as many as 128 transfers was made in public interest, the Court is unable to return a prima facie finding that the present exercise of transfer was mala fide, or to accommodate any particular person.

10. The Court is reminded of the observations of the Supreme Court of India in the case of S.L. Abbas (supra), which is quoted below:-

7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323-A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).

11. Therefore, as transfer is an incidence of service, the Court is not inclined to stay the transfer and posting order in respect of the petitioner. The Page No.# 6/6

Court is also unable to agree with the contention of the learned senior counsel for the petitioner that if the impugned order is not interfered with, it would amount to permit the respondent no. 2 to overreach the interim orders passed by this Court during the currency of the said W.P.(C) 1716/2021. Without expressing any opinion on the merit of W.P.(C) 1716/2021, it appears that this Court had deemed it fit and proper to pass the interim order dated 19.03.2021, and thereby stay the notification dated 26.02.2021. However, the Court is unable to accept the submissions made by the learned senior counsel for the petitioner that without obtaining prior leave from this Court in W.P.(C) 1716/2021, the petitioner could not have been transferred at all.

12. Therefore, in light of the discussions above, the prayer for interim relief of staying the transfer notification dated 11.08.2021, in so far it relates to the petitioner, whose name appears in serial no. 6 of the said notification, is refused.

13. The observations made herein are only for the purpose of examining the prayer for interim relief and accordingly, it is clarified that any observations made herein shall not prejudice the petitioner at the time of hearing the matter on merit.

14. List on 27.09.2021. The Registry shall put up a notice regarding service of notice on respondent nos. 4 and 5.

JUDGE

Comparing Assistant