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2022 Supreme(Gau) 244
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Bornali Gogoi W/o Pratim Barua – Petitioner
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 1922 of 2022
Decided On : 25-04-2022
Advocate Appeared:
For the Petitioner: Mr. P. Mahanta.
For the Respondent: Mr. D. Nath.
Point of Law: Order of cancellation, 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.
Headnote:
Constitution of India, 1950 - Article 226 - Power of High court to issue writs - Petitioner, who was a Supervisor in Chamaria ICDS Project in district was transferred to Paschim Mangaldoi ICDS Project in Darang district as per order of transfer - Upon being transferred, petitioner was released from Chamaria ICDS Project as per office order and she joined at her new place of posting - Prior to petitioner having joined at her new place of posting, order was issued by same authority who had issued earlier order, whereby earlier order of transfer was cancelled - Order cancelling earlier transfer order is assailed in this writ petition - whether an order of transfer can be cancelled after same has been given its effect.
Finding of the Court:
Court would have to be in agreement with, learned senior Government Advocate that cancellation order was passed before order of transfer was given its complete effect - But however, court also take note of that order of cancellation was not served on petitioner, meaning thereby it was an order that was passed and kept on file and not served on person concerned - Court have to accept that order of transfer did have its full effect and therefore, could not have been cancelled subsequently - But Government Advocate in order to justify cancellation order raises certain factual circumstances to justify that order of transfer was incorrectly issued and was not maintainable under facts and circumstances as well as under law.
Result: Writ Petition is disposed of.
JUDGMENT :
ACHINTYA MALLA BUJOR BARUA, J.
1. 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 I.A. (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.
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.
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.
10. The writ petiti
