Chankan Malakar vs State Of Assam And 4 Ors

Heard Mr. A. Dhar, learned counsel for the petitioner and Mr. T.C. Chutia, learned Government Advocate appearing for the respondents no.1 to 4.

By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the impugned order dated 02.07.2021

or any other consequential order(s) for giving effect to the transfer order dated 25.02.2021 so as it relates to transfer of the petitioner from the office

of Kamrup (Metro) to Darrang as Inspector, FCS and CA.

The case projected by the learned counsel for the petitioner is that the petitioner was transferred from Kamrup (Metro) and posted at Darrang vide

government notification dated 25.02.2021 in compliance of advisory/guideline issued by the Election Commission of India in view of the general

election to the State Assembly, 2021 since the petitioner had completed around 7 years at Kamrup (Metro). Accordingly, the petitioner had submitted

a representation dated 08.03.2021 for reconsideration of the order of his transfer and to allow him to continue his service at Kamrup (Metro) due to

his poor health condition. In view of his said representation, the Secretary to the Government of Assam, FCS and CA department had asked the

Deputy Commissioner, Kamrup (Metro) to defer the case of the petitioner to medical board and submit the reports for taking further course of action

from their end. The aggrieved petitioner had filed WP(C) 1816/2021 and this Court by order dated 19.03.2021, disposed of the writ petition by

directing the respondent no.2 to take a decision on the petitioner’s representation dated 08.03.2021 keeping in view of the letter dated 26.02.2021

issued by the Election Commission of India and it was also provided that till a decision is taken by the respondent no.2, the transfer order in respect of

the petitioner was kept in abeyance.

It may be stated that the petitioner had challenged the notification dated 25.02.2021 by filing WP(C) 1816/2021 on the ground that there was a total

ban on transfer of the officials connected with the conduct of election and that transfer orders issued in respect of those category of officers prior to

the date of announcement of election, but not implemented cannot give an effect to without obtaining the specific permission from the Election

Commission. The petitioner had also taken the plea that he was suffering from pancreatitis cancer and was going to superannuate on 01.03.2023 and

that the respondent no.2 ought to consider his representation dated 08.03.2021.

By an order dated 24.07.2021, the Joint Director of Health Services informed the Deputy Commissioner, Kamrup (Metro) that the petitioner may

be directed to appear before the District Medical Board on 11.05.2021 at 2 p.m. and accordingly, the Medical examination report of the petitioner was

forwarded by the Deputy Commissioner, Kamrup (Metro) to the Secretary to the Government of Assam, FCS and CA Department. The petitioner

vide representation dated 26.01.2021 had requested the Secretary to the Government of Assam, FCS and CA Department not to issue any order

releasing him from the present place of posting till the decision was taken on his representation including report of the District Medical Board. The

petitioner also moved this Court by filing WP(C) 3218/2021 and this Court by order dated 07.07.2021 disposed of the writ petition, inter-alia with the

following observations:

It transpires that prior to the disposal of the writ petition, W.P.(C) No.1816/2021 on 19.03.2021, the respondent no. 2 after receipt of representation

dated 08.03.2021, had intimated the respondent no. 4 vide his communication dated 17.03.2021 to refer the case of the petitioner to the Medical

Board. It further transpires that vide letter dated 27.04.2021, the petitioner was asked to appear before the District Medical Board, Kamrup (M) on

11.05.2021. Accordingly, the petitioner appeared before the District Medical Board on 11.05.2021. The District Medical Board after examining the

case of the petitioner, had opined that the petitioner is a patient of Periampullary Carcinoma (Pancreatic Cancer) and his representation could be

accepted. In the writ petition, W.P.(C) No. 1816/2021, this Court had directed the respondent no. 2 to take a decision on the petitioner’s

representation dated 08.03.2021 wherein he had mentioned about the difficulties he would likely face in case he had to join at his new place of posting

in the district of Darrang. A perusal of the communication dated 17.06.2021 does not go to indicate that the respondent no. 2 prior to issuance of the

said communication, had considered the representation of the petitioner in deference to the direction of this Court contained in the order dated

19.03.2021.

If any decision had already been taken, prior to 17.06.2021, by the respondent no. 2 on the petitioner’s representation, the same shall be

communicated to the petitioner forthwith. If no decision has been taken by the respondent no. 2 till date on the representation of the petitioner, this

Court is of the view that the respondent no. 2 shall have to take a decision in deference to the direction of this Court before acting on the order of

transfer dated 25.02.2021 concerning the petitioner. Having taken note of the aforesaid fact situation obtaining in the case and the submission made by

Mr. Gogoi, this Court is of the view that this writ petition can be disposed of, at this stage, with a direction to the respondent no. 2 to take a decision on

the petitioner’s representation dated 08.03.2021, if no such decision has been taken till date. While taking the decision, the respondent no. 2 shall

also consider the report of the District Medical Board which was directed to hold its sitting in terms of his own decision. It is expected that the

respondent no. 2 shall dispose of the said representation as expeditiously as possible, preferably within a period of 3(three) weeks from today. It is

further observed that till such a decision is taken, the impugned transfer order in so far as it relates to the petitioner, shall not be acted upon.â€​

The said order dated 07.07.2021 of this Court was submitted before the Officer of the Deputy Commissioner, Kamrup (Metro) and Secretary to the

Government of Assam, FCS and CA Department vide forwarding letters dated 08.07.2021 and 09.07.2021 respectively.

Thereafter, by an order dated 02.07.2021, the Secretary to the Government of Assam, FCS and CA Department considered the report of the

District Medical Board, Kamrup (Metro) and accordingly, the transfer of the petitioner was upheld by recording a finding that the petitioner was

transferred to Darrang, which is a nearby district of Kamrup (Metro) considering his health condition so that he can avail medical assistance as and

when required, and the representation was disposed of by directing the petitioner to join his new place of posting at Darrang. The petitioner has

annexed a copy of the peon book (Annexure-22) to show that the said order dated 02.07.2021 was served to the petitioner on 12.07.2021, and it is

projected that the order was passed at a back-date.

The learned counsel for the petitioner submits that the petitioner is due to retire on 01.03.2023 and that his home district is Kamrup (Metro) and the

petitioner is availing treatment at Guwahati where there are much better medical facilities and that Mangaldoi in the district of Darrang does not have

the medical facilities for treatment of pancreatitis cancer (periampullary carcinoma).

Opposing this writ petition, the learned Additional Senior Government Advocate submits that transfer is an incidence of service and that the travel

distance from Mangaldoi to Guwahati would be around 2 hours and therefore, distance between Mangaldoi and Guwahati would not be an impediment

for the petitioner to avail his necessary treatment at Guwahati.

In view of the nature of grievance raised in the present writ petition, let a notice including notice on the prayer for interim relief, returnable on

02.08.2021 be issued.

As the learned Additional Senior Government Advocate is representing respondent nos.1 to 4, requisite additional copies of the writ petition be

furnished to him within 2(two) days. The petitioner shall take steps for service of notice on the respondent no.5 by registered post with A/D. The

learned counsel for the petitioner is at liberty to collect the postal service number and track service from the postal website and to submit postal track

report to the Registry prior to the next date of listing.

Considered the prayer for interim relief. In this regard the Court is of the considered opinion that a transfer is of incidence of service and that the

impugned order dated 02.07.2021 indicates that the petitioner had completed around 7 years of posting within Kamrup (Metro) district. Under such

circumstances, notwithstanding that the petitioner is suffering from pancreatitis cancer (periampullary carcinoma), and that he is in verge of his

superannuation on 01.03.2023, the Court is not inclined to stay the impugned order no.FSB.34/2017/209 dated 02.07.2021.

Nonetheless, the Court is inclined to provide that the said impugned order dated 02.07.2021 would be subject to further orders that may be passed

by the Court.

List the matter on 02.08.2021.