Bornali Gogoi vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1345 Gua

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GAHC010052192022




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

                       Case No. : WP(C)/1922/2022

         BORNALI GOGOI
         W/O- PRATIM BARUA, R/O- HOUSE NO. 27, KALYANI NAGAR,
         KAHILIPARA, GUWAHATI-781019 IN THE DISTRICT OF KAMRUP(M),
         ASSAM


         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, SOCIAL WELFARE DEPARTMENT, DISPUR,
         GUWAHATI-05, ASSAM

         2:THE DIRECTOR
          SOCIAL WELFARE
          GOVERNMENT OF ASSAM
          M.G. ROAD
          UZANBAZAR
          GUWAHATI-01
          KAMRUP(M)
         ASSAM

         3:THE CHILD DEVELOPMENT AND PROJECT OFFICER
          CHAMARIA ICDS PROJECT
          NAGARBERA
          KAMRUP
          PIN- 781127
         ASSAM

         4:THE CHILD DEVELOPMENT AND PROJECT OFFICER
          PASCHIM MANGALDOI ICDS PROJECT
          DARRANG
          PIN- 784529
         ASSA
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Advocate for the Petitioner : MR. P MAHANTA
Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 25-04-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. P Mahanta, learned counsel for the petitioner and Mr. D Nath, learned senior Government Advocate for the respondents in the Social Welfare Department.

2. The petitioner, who was a Supervisor in the Chamaria ICDS Project in the Kamrup district was transferred to Paschim Mangaldoi ICDS Project in the Darang district as per the order of transfer dated 17.02.2022. Upon being transferred, the petitioner was released from Chamaria ICDS Project as per office order dated 21.02.2022 and she joined at her new place of posting on 22.02.2022. Prior to the petitioner having joined at her new place of posting on 22.02.2022, the order dated impugned 21.02.2022 was issued by the same authority who had issued the earlier order dated 17.02.2022, whereby the earlier order of transfer was cancelled. The order of 21.02.2022 cancelling the earlier transfer order dated 17.02.2022 is assailed in this writ petition.

3. By our earlier order dated 17.03.2022, an order of status-quo was issued, which was clarified by the order dated 22.03.2022 in IA(Civil) No. 881/2022. Upon the matter remaining under the purview of the order of status-quo, although no notice had been issued in the matter, the pleadings had already been exchanged. Consequently, from such point of view, it can be understood that the matter can also be given a final consideration.

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4. Without going into any other aspect, we take note of the dates on which the orders were passed. On 17.02.2022, the petitioner was transferred, on 21.02.2022, the petitioner was released from her initial place of posting and on 22.02.2022, she joined at her new place of posting. Before the petitioner could have joined on 22.02.2022, the order impugned dated 21.02.2022 was passed whereby the order of transfer dated 17.02.2022 was cancelled. In the circumstance, we have to adjudicate as to whether an order of transfer can be cancelled after the same has been given its effect.

5. Mr. D Nath, learned senior Government Advocate raises a contention that the order of transfer dated 17.02.2022 was given its full effect on 22.02.2022 when the petitioner joined at her new place of posting whereas the order of cancellation was issued on 21.02.2022.

6. From such point of view, we would have to be in agreement with Mr. D Nath, learned senior Government Advocate that the cancellation order was passed before the order of transfer was given its complete effect. But however, we also take note of that the order of cancellation dated 21.02.2022 was not served on the petitioner, meaning thereby it was an order that was passed and kept on the file and not served on the person concerned.

7. The law in this respect has been settled by the Supreme Court that if an order had been passed, but kept on file without serving it on the person concerned, such order will not have its effect on the person upon whom it ought to have been served. From such point of view, the order of cancellation although it is dated 21.02.2022, under the law, would have to be construed that it did not have its effect on the petitioner as it was not served on her before she had joined at her new place of posting.

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8. From such point of view, we have to accept that the order of transfer did have its full effect and therefore, could not have been cancelled subsequently. But Mr. D Nath, learned senior Government Advocate in order to justify the cancellation order dated 21.02.2022 raises certain factual circumstances to justify that the order of transfer dated 17.02.2022 was incorrectly issued and was not maintainable under the facts and circumstances as well as under the law.

9. If it is so, remedy perhaps would be to issue a fresh order of transfer to mitigate the circumstance. The order passed in this writ petition interfering with the order of cancellation dated 21.02.2022 shall not be a bar on the part of the respondent authorities to pass any further orders as may be advisable under the law.

The writ petition is disposed of in the above terms.

JUDGE

Comparing Assistant