Ashutosh Gupta vs State Of Assam And Ors

1) Heard Mr. N. Dhar, the learned counsel for the petitioner and Mr. M. Nath, the learned standing counsel for the Panchayat & Rural Development Department, the respondents herein.

2) By way of this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed his transfer by order dated 09.11.2016 and order dated 22.11.2016, by which he was released from his place of posting to enable the petitioner to join the new place of posting.

3) In view of the nature of grievance raised in the present writ petition, and observing that the respondents have not filed any response for almost 2 year 8 months. Hence, the matter has been heard in the admission stage at the instance of the learned counsel for the petitioner by issuing rule returnable forthwith.

4) The case projected by the learned counsel for the petitioner is that the petitioner is working as Secretary of Bhajantipur Gaon Panchayat under Silchar Anchalik Panchayat and Development Block and, as such, it is claimed that the petitioner is a provincialised employee of the Gaon Panchayat under the Assam Panchayat Act, 1994. It is submitted that under political interference, the Chief Executive Officer, Cachar Zilla Parishad by order dated 07.09.2016, had transferred the petitioner from the post of Secretary of Bhajantipur Gaon Panchayat and posted as Secretary of Laboc Gaon Panchayat under Rajabazar Anchalik Panchayat and Development Block. It is submitted that both the respective Gaon Panchayats are under the Cachar Zilla Parishad. Against his transfer, the petitioner had submitted a representation dated 12.09.2016 before the said authority. However, as no decision was taken on his representation, the petitioner had approached this Court by filing a writ petition, which was registered as W.P.(C) No. 5736/2016. This Court by order dated 23.09.2016, was pleased to dispose of the said writ petition by directing the respondent No.4 therein to decide the representation of the petitioner within a period of 1 (one) month from the date of receipt of certified copy of the order. It was further directed that till a decision is taken by the respondent No.4, the transfer order dated 07.09.2016 would remain suspended. It is submitted that till date no decision was taken by the authorities in terms of the order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016. However, the Commissioner of Panchayat & Rural Development, Govt. of Assam, by the impugned order dated 09.11.2016 had transferred the petitioner, working as Secretary of Bhajantipur Gaon Panchayat under Silchar Development Block and posted him at Bhurakata Gaon Panchayat under Fekamari Development Block of Dhubri Zilla Parishad with immediate effect. Accordingly, consequential order dated 22.11.2016 was passed by the Chief Executive Officer, Cachar Zilla Parishad to release the petitioner from his place of posting to enable him to join his new place of posting.

5) By referring to the transfer order dated 09.11.2016, it is submitted that a copy of the petitioner's transfer order was served on the O.S.D. to the Minister of Panchayat & Rural Development, Assam. In the said context, it is submitted that in normal course of official business, the transfer of Secretary of a Gaon Panchayat was not required to be brought to the notice of Minister of the Government of Assam, because the said procedure was not followed when the petitioner was transferred previously. It is submitted that the transfer of the petitioner from one place of posting to another district at a place which is about 800 km. away, was done under political interference, as such, the order of his transfer was brought to the notice of the concerned Minister. It is further submitted that the transfer of the petitioner was in violation of Rule 5(2)(c) of the Assam Panchayat (Administrative) Rules, 2002 which prohibits transfer of Panchayat employees outside the jurisdiction of his/ her original district. It is submitted that as the respondents had not complied with the order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016, the respondents could not have passed the subsequent transfer order dated 09.11.2016. It is submitted that as the respondents have not filed any affidavit- in- opposition, it should be presumed by this Court that the respondents had admitted the pleadings of the petitioner and had nothing to submit against the writ petition and therefore, the writ petition be allowed by granting reliefs as prayed for.

6) Per contra, the learned standing counsel for the respondents has vehemently objected to the prayers made in this writ petition. It is submitted that Rule 5 of the Assam Panchayat (Administrative) Rules, 2002 relate to provide for "Controlling and Disciplinary Authority in respect of the employees other than provincialised Panchayat employees" and, as such, it is submitted that Rule 5(2)(c) of the Assam Panchayat (Administrative) Rules, 2002 would not apply on the petitioner to claim protection from transfer. It is submitted that at the relevant time, the appointing authority of the petitioner was the Director of Panchayat & Rural Development, which is now substituted by the Commissioner of Panchayat & Rural Development. Accordingly, it is submitted that as Commissioner of Panchayat & Rural Development was the competent authority to transfer the petitioner, and as the said authority had the power and authority, there was no need for the Chief Executive Officer of Cachar Zilla Parishad to pass any order on the representation submitted by the petitioner on 12.09.2016 against the previous order of transfer, as he had no competence to have passed any order to transfer the petitioner from one place of posting to another. It is submitted that in his representation dated 12.09.2016, the petitioner had enclosed medical documents to show that the petitioner was a patient of chronic diabetes and was suffering from other ailments and was required to be posted in an area which has good medical facilities. It is further submitted that in the present case, it is the stand of the petitioner is that his transfer outside the district of Cachar is in violation of the extant rules, as such, this was a fit case for directing the respondents to first dispose of his representation before the order of transfer could be made effective on him.

7) This Court, by order dated 27.09.2016, had observed that the normal tenure of 3 (three) years at a place of posting must have come to an end. By referring to the said order dated 27.09.2016, the learned Standing counsel for the respondents has submitted that although the petitioner has not made any statement that from which date he is working in the present place of posting, but he has been instructed that petitioner has been in the same place of posting for about 10 years. At this stage, the learned counsel for the petitioner has submitted that the said submissions are beyond pleadings and, as such, by producing a copy of order No. PDDE(II)18/2003/47-48 dated 03.03.2003, it is submitted that pursuant to order dated 03.10.2001, passed by this Court in W.P.(C) No. 4536/2000, the petitioner, who was till then working as casual worker, was temporarily appointed as Tax Collector - cum - R.M. in scale- pay and posted at Bhorakai Gaon Panchayat under Borjalenga Anchalik Panchayat. He has further submitted that if an opportunity is given, he can produce copy of various transfer orders to counter the submissions made by the learned standing counsel for the respondents. Hence, it is submitted that cognizance of baseless oral submissions by counsel of party who has not submitted any affidavit- in- opposition ought not to be accepted at its face value.

8) Accepting the submissions made by the learned counsel for the petitioner, the cognizance of submissions by the learned standing counsel for the Panchayat & Rural Development to the effect that the petitioner has been serving in Bhajantipur Gaon Panchayat for last 10 years is not taken. However, the documents annexed to this writ petition discloses that at least since 18.05.2016, the petitioner is working as Secretary of the Bhajantipur Gaon Panchayat for a tenure of more than three years' at one place of posting. It is too well settled that transfer is an incidence of service for which this order need not be burdened with case law on the point. However, it is seen that against the previous order of transfer dated 07.09.2016, this Court by order dated 23.09.2016, had issued a direction to the authorities to dispose of the representation submitted by the petitioner against the transfer order dated 07.09.2016. However, the Chief Executive Officer, Cachar Zilla Parishad had not complied with the order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016, as the representation submitted by the petitioner had not been disposed of. Instead, without recalling or modifying the previous order of transfer dated 07.09.2016, the Commissioner of Panchayat & Rural Development, Govt. of Assam had passed another transfer order bearing No. PDDE(II) 50/2015/39 dated 09.11.2016. Consequently, by order under Memo No. CZP.345(Esstt.)Pt-VIII/2014-15 dated 22.11.2016, the Chief Executive Officer, Cachar Zilla Parishad, had released the petitioner from his place of posting. Therefore, as on date, two transfer orders has been passed against the petitioner, one is dated 07.09.2016, by the Chief Executive Officer, Cachar Zilla Parishad, the operation of which has been suspended by order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016, and the other being the impugned transfer order dated 09.11.2016, passed by the Commissioner of Panchayat & Rural Development, Govt. of Assam. This Court is of the considered opinion that as the Chief Executive Officer, Cachar Zilla Parishad was under a direction vide order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016 to dispose of the petitioner's representation dated 12.09.2016, the said authority could not have issued order under Memo No. CZP.345(Esstt.)Pt-VIII/2014-15 dated 22.11.2016, the Chief Executive Officer, Cachar Zilla Parishad to release the petitioner. Hence, this Court has no hesitation to set aside the said order under Memo No. CZP.345(Esstt.)Pt-VIII/2014-15 dated 22.11.2016, passed by the Chief Executive Officer, Cachar Zilla Parishad.

9) As two transfer orders as indicated herein before has been issued against the petitioner, this Court is inclined to dispose of this writ petition by granting to the petitioner 3 (three) weeks' time from today to submit a fresh representation before the Commissioner of Panchayat & Rural Development in respect of transfer order bearing No. PDDE(II) 50/2015/39 dated 09.11.2016. Accordingly, the Commissioner of Panchayat & Rural Development, Govt. of Assam (respondent No.2) is directed that on receipt of such representation, while taking note of the transfer order dated 07.09.2016, he shall dispose of the said representation to be submitted by the petitioner within a period of 1 (one) month from the date of receipt of such representation together with a certified copy of this order. Till a decision is taken by the respondent No.2, the order of transfer bearing No. PDDE(II) 50/2015/39 dated 09.11.2016, issued by the Commissioner of Panchayat & Rural Development (respondent No.2) shall remain suspended.

10) It is made clear that as the order dated 23.09.2016 passed by this Court in W.P.(C) 5736/2016 still holds the field and it would not be open to the authorities to make any attempt to circumvent the said order that has attained finality. Accordingly, the Chief Executive Officer, Cachar Zilla Parishad continues to be obliged to comply with the directions contained therein and dispose of the petitioner's representation dated 12.09.2016, and till then the interim direction as passed by this Court would continue to hold the field.

11) With the said direction, this writ petition stands disposed of and rule is made absolute in terms of this order.

12) No cost.