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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, J.
Jagat Chandra Das S/o Late Mohram Das – Petitioner
Versus
Anupam Khargaria S/o Late Sailyadhar Khargaria – Respondent
I.A. (Civil) No. 3 of 2021, W.P. (C) No. 5108 of 2020
Decided On : 31-03-2021
General Clauses Act - Section 27 - Un-served Notice - Vide notification, a number of Engineers in the PWD were transferred - In the said notification petitioner was promoted and allowed to officiate as Executive Engineer (C), PWD and posted as Executive Engineer (C), PWRD, Morigaon District Territorial Road Division, Morigaon w.e.f. the date the petitioner took charge from the respondent No. 4 - Notification also directed the petitioner to hand over the charge of Assistant Executive Engineer (C) to the senior most AE (C) of the Division - Petitioner accordingly joined at his new place of posting at Morigaon District Territorial Road Division by submitting his joining letter - Joining letter was addressed to the respondent No. 4, requesting him to take necessary action for handing over and taking over charge at an early date - However, the same not done by the respondent no. 4 - By the notification, the respondent No. 4 was in turn transferred to the post of EE (C), PWRD, Bakulia Road Division, Bakulia, Karbi Anglong - However, the State respondents subsequently issued a notification whereby the posting of the petitioner and the transfer of the respondent No. 4 were both cancelled - Writ petition was withdrawn with liberty to approach this Court again, as because, another notification was issued whereby the petitioner was posted as EE(C), PWRD, Bakulia Road Division, Karbi Anglong and placed at the disposal of the Karbi Anglong Autonomous Council.
Finding of the Court:
Court is of the view that Para 6(v) of the said directions would not be applicable to the case in hand, inasmuch as, there is nothing to show that the petitioner is connected with the conduct of Assembly Elections to be held in the State of Assam and also due to the fact that there has been a stay of the impugned Notifications, vide Order passed by this Court - It is noticed that though this Court had stayed the Notification, which would in effect revive the earlier transfer order of the respondent No. 4, issued vide Notification, it is surprising to learn from the pleadings that respondent No. 4 is continuing to do work as EE (C), PWRD, Morigaon District Territorial Road Division - Court is of the view that though the manner in which the petitioner's posting was cancelled vide Notification and his subsequent posting made vide Notification is not in public interest or due to exigency of service, the petitioner does not have a right to be posted to a particular place. - Further, there is nothing to show that any legal right of the petitioner has been violated by the respondents, by changing his place of posting from Morigaon District Territorial Road Division to Bakulia Road Division, Karbi Anglong - Due to the above reasons, this Court is not inclined to exercise its discretion in the present case.- Respondents are directed to pay to the petitioner his arrear salary and entitlements, within a period of 2 (two) weeks from the date of receipt of a copy of this order.
Result: Writ Petition Dismissed.
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. A.D. Choudhury, learned counsel for the petitioner. Also heard Mr. D. Nath, learned counsel for the respondent Nos. 1, 2 and 3 and Mr. S.N. Sarma, learned Senior counsel for the respondent No. 4, assisted by Mr. K. Kalita. No one appears for the respondent No. 5 though notice was issued to him on 04.12.2020. Though there is no return of A/D card or un-served notice, notice is deemed to be served upon the respondent No. 5 in terms of Section 27 of the General Clauses Act.
2. The brief facts of the case is that vide notification dated 06.11.2020, a number of Engineers in the PWD were transferred. In the said notification dated 06.11.2020, the petitioner was promoted and allowed to officiate as Executive Engineer (C), PWD and posted as Executive Engineer (C), PWRD, Morigaon District Territorial Road Division, Morigaon w.e.f. the date the petitioner took charge from the respondent No. 4. The notification also directed the petitioner to hand over the charge of Assistant Executive Engineer (C) to the senior most AE (C) of the Division. The petitioner accordingly joined at his new place of posting at Morigaon District Territorial Road Division on 09.11.2020 by submitting his joining letter. The joining letter dated 09.11.2020 was addressed to the respondent No. 4, requesting him to take necessary action for handing over and taking over charge at an early date. However, the same not done by the respondent no. 4.
3. By the notification dated 06.11.2020, the respondent No. 4 was in turn transferred to the post of EE (C), PWRD, Bakulia Road Division, Bakulia, Karbi Anglong. However, the State respondents subsequently issued a notification dated 12.11.2020, whereby the posting of the petitioner and the transfer of the respondent No. 4 were both cancelled.
4. Being aggrieved by the same, the petitioner filed WP (C) No. 4962/2020. However, the said writ petition was withdrawn with liberty to approach this Court again, as because on 25.11.2020, another notification was issued whereby the petitioner was posted as EE(C), PWRD, Bakulia Road Division, Karbi Anglong and placed at the disposal of the Karbi Anglong Autonomous Council. The petitioner, being aggrieved by the same, has filed the present writ petition.
5. This Court, vide its Order dated 01.12.2020, stayed the operation of the Notification dated 12.11.2020 by which the posting of the petitioner and transfer of the respondent No. 4 was both cancelled and also stayed the Notification dated 25.11.2020 by which the petitioner was posted as EE(C), PWRD, Bakulia District Territorial Road Division, Bakulia, Karbi Anglong. The Order dated 01.12.2020 also stated that the State respondents were to explain by way of an affidavit, as to why the above two orders that had been stayed had been issued.
6. The petitioner’s counsel submits that the impugned notification dated 25.11.2020, by which the petitioner has now been posted as AE(C), PWRD, Bakulia Road Division, Karbi Anglong, has been made due to the alleged mala-fide action on the part of the respondent No. 5, who is the local MLA of Jagiroad. He submits that the posting has been made at the instance of the respondent No. 4 and the respondent No. 5 and, as such, the illegal posting order, which is not in public interest, should be set aside.
7. Mr. S.N. Sarma, learned Senior counsel, appearing for the respondent No. 4, submits that the respondent No. 4 is suffering from liver cirrhosis and as the respondent No. 4 was going to retire on 31.12.2021, the respondent No. 4 had submitted an application to the State respondents to allow him to continue in his present place of posting till his retirement. He further submits that as per Government policy, a Government employee is allowed to remain in his last place of posting till his retirement. He submits that though the petitioner’s home district and home town is Guwahati, the petitioner should be allowed to remain in Morigaon till his retirement, as it is his
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