Brajendra Nath Das vs The State Of Assam And 3 Ors
2023 Latest Caselaw 3140 Gua

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GAHC010180512023




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

                         Case No. : WP(C)/4695/2023

         BRAJENDRA NATH DAS
         S/O- LT. NARESWAR DAS,
         R/O- MADHYA METUAKUCHI, WARD NO. 18,
         P.O.- BARPETA, P.S.- BARPETA,
         DIST- BARPETA, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
         ASSAM,
         WOMEN AND CHILD DEVELOPMENT DEPARTMENT (EARLIER SOCIAL
         WELFARE DEPARTMENT),
         DISPUR, GUWAHATI-6, ASSAM.

         2:THE SECRETARY TO THE GOVERNMENT OF ASSAM
         WOMEN AND CHILD DEVELOPMENT DEPARTMENT
          (EARLIER SOCIAL WELFARE DEPARTMENT)

         DISPUR
         GUWAHATI-6
         ASSAM.

         3:THE DIRECTOR
         WOMEN AND CHILD DEVELOPMENT
         ASSAM
          (EARLIER SOCIAL WELFARE DEPARTMENT)

         UZAN BAZAAR
         GUWAHATI-1

         ASSAM.
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            4:THE SECRETARY
            WOMEN AND CHILD DEVELOPMENT DEPARTMENT
             (EARLIER SOCIAL WELFARE DEPARTMENT)

            BODOLAND TERRITORIAL COUNCIL SECRETARIAT

            BODOFA NWGWR
            KOKRAJHAR

            ASSAM

Advocate for the Petitioner   : MR G BAISHYA

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                           ORDER

16.08.2023 Heard Mr. G Baishya, learned counsel for the petitioner and Ms. M Bhattacharya, learned Government Advocate, Assam for the respondent Nos. 1 to 3. Also heard Ms. P Das, learned Standing counsel, BTC for the respondent No. 4.

2. The petitioner, Child Development Project Officer (CDPO) under the Social Welfare Department of the State was transferred from Barpeta to Kokrajhar district by the authorities in the Social Welfare Department by Notification dated 06.02.2021. Pursuant to the same, he on 04.03.2021 took over the charge as CDPO, Kokrajhar ICDS Project, Kokrajhar.

3. Thereafter, the authorities in the BTC by Notification dated 30.06.2021 posted him in the same capacity as CDPO at Borobazar ICDS Project, Chirang as one Sri Simanta Pradip Choudhury, CDPO was already transferred.

4. Pursuant to the said transfer order dated 30.06.2021, the petitioner on 08.08.2021 joined his service as CDPO, Borobazar ICDS Project, Chirang and since then he is serving in the same capacity.

5. The State Government in the Department of Women and Child Development vide Page No.# 3/5

Notification No. E-230058/43-T dated 03.07.2023 transferred the petitioner from Borobazar ICDS Project, Chirang and posted him as District Social Welfare Officer (DSWA) at Dibrugarh with immediate effect and until further order.

6. By another order dated 08.08.2023, the authorities in the BTC directed the petitioner to hand over charge of CDPO, Borobazar ICDS Project, Chirang to the CDPO of Sidli, who has been made the in-charge CDPO of Borobazar ICDS Project.

7. The petitioner contended that as per the Unique Disability ID issued to him by the Directorate of Health Services, Government of India, he is suffering from 40% permanent disability.

8. It is also stated by the petitioner that he on 05.07.2023 submitted a representation before the Secretary to the Government of Assam in the Department of Women and Child Development for modification of his transfer order considering his disability and instead of transferring him to Dibrugarh as District Social Welfare Officer, prayed to consider his transfer in and around Bongaigaon district or any other nearest district for his best possible service to the department.

9. It is also stated that both of his sons are in the midst of their academic session studying at Kendriya Vidyalaya, Barpeta.

10. Mr. Baishya, learned counsel appearing on behalf of the petitioner also placed before the Court the Office Memorandum of the Government of India, Ministry of Personnel Public Grievances and Pensions, Department of Personnel & Training dated 10.05.1990 pertaining to the transfer of physically disabled employees and further, placed the Office Memorandum dated 31.03.2014 of the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training wherein at Clause-H, the authorities concerned directed to consider the preference in transfer and posting to the persons with disability, observing that such persons may be exempted from the rotational transfer policy/transfer and should be allowed to continue in the same job where they would have achieved the desired performance with the observation that preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject the administrative constraints.

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11. It is submitted that the State Government in the Department of Women and Child Development modified the transfer orders of various officers for whom transfer orders had been issued by the same Notification dated 03.07.2023 along with the petitioner and the authorities concerned after considering their representations, modified their transfer orders dated 03.07.2023 against the existing vacant posts or to the place of their choices.

12. It is also stated that the respondent authorities till date has not considered the representation of the petitioner dated 05.07.2023, noted above, that was received by the concerned office on 06.07.2023.

13. By placing reliance on the judgment of a Co-ordinate Bench of this Court passed in WP(C) No. 3091/2019, Dr. Netramoni Kakati -Vs.- State of Assam and Others ; reported in 2019 (8) GLR 181, it is submitted by Mr. Baishya, learned counsel for the petitioner that the State Government in terms of the said judgment is under the bounden duty/obligation to comply and implement the provisions of the statutory enactment, the Rights of Persons with Disability Act, 2016 and the Office Memorandums of the Central Government keeping into consideration of the provisions of the said 2016 Act, till such adoption of or framing of any appropriate Rules/Memorandum in that regard by the State authorities.

14. Issue notice, returnable by 30.08.2023.

15. As Ms. M Bhattacharya, learned Government Advocate, Assam and Ms. P Das, learned Standing counsel, BTC have accepted notices on behalf of the respondent Nos. 1 to 3 and 4 respectively, no formal notice need be issued to those respondents.

16. Petitioner shall serve requisite extra copy of this writ petition including the Annexures appended thereto, to Ms. M Bhattacharya, learned Government Advocate, Assam and Ms. P Das, learned Standing counsel, BTC during the course of the day, obtaining necessary acknowledgments from them in that regard.

17. Till the returnable date, i.e., 30.08.2023 the impugned transfer order under No. E- 230058/43-T dated 03.07.2023 issued by the Principal Secretary to the Government of Assam in the Department of Women and Child Development, noted above, with regard to the petitioner transferring his service as CDPO, Borobazar ICDS Project, Chirang and posting him as District Social Welfare Officer at Dibrugarh shall remain suspended.

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18. Consequently, the order under No. BTC/SW-7/2022-23/46d dated 08.08.2023 issued by the Secretary, BTC, Kokrajhar directing the petitioner to hand over the charge of CDPO, Borobazar ICDS Project, Chirang to Sri. Shyameswar Mushahary, CDPO, Sidli shall also remain suspended till the said returnable date i.e., 30.08.2023.

19. List accordingly.

JUDGE

Comparing Assistant