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2023 Supreme(Online)(GAU) 4180
GAHC010146542023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3877/2023 MANOJ KUMAR CHATURVEDI AND 7 ORS.
S/O- LATE HARI SHANKAR CHATURVEDI, VILL.- BADRI BASTI, P.O. KORAIKANDI, P.S. LAKHIPUR, DIST. CACHAR, ASSAM, PIN- 788001.
2: ASIT RANJAN DAS S/O- LATE RASHMOHAN DAS VILL.- OLD FIELD COLONY P.O. BADARPUR DIST. KARIMGANJ ASSAM PIN- 788006.
3: BISWAJIT DEY S/O- LATE BIRENDRA CHANDRA DEY VILL.- SARAT PALLY P.O. LINK ROAD DIST. CACHAR ASSAM PIN- 788006.
4: BIRMANGAL SINGHA S/O- LATE BRAJAMOHAN SINGHA VILL.- JOYPUR PT-II P.O. JAYPUR RAJA BAZAR DIST. CACHAR ASSAM PIN- 788107.
5: MEHERAJ HUSSAIN BARBHUIYA S/O- LATE AJI UDDIN BARBHUIYA VILL.- KANAKPUR PT-II (WARD NO. 14)
P.O. RANGIRKHARI DIST. CACHAR ASSAM PIN- 788005.
6: RINKU BHOWMIK S/O- LATE BIPIN CHANDRA BHOWMIK VILL.- JOYPUR PART-II P.O. JOYPUR RAJA BAGAN DIST. CACHAR ASSAM PIN- 788107.
7: SANDIP KUMAR PATOA S/O- LATE GANGA SAGAR PATOA VILL.- ITKHOLA GANDHI NAGAR ROAD P.O. SILCHAR DIST. CACHAR ASSAM
8: ALOK KUMAR GHOSH S/O- LATE RAMDAYAL GHOSH VILL.- SHILLONG PATTY P.O. SILCHAR-1 DIST. CACHAR ASSA VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT, DISPUR, GUWAHATI-06. 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-06.
3:THE SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-06.
4:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM PANJABARI JURIPAR GUWAHATI-37.
5:THE DEPUTY COMMISSIONER CACHAR SILCHAR P.O. SILCHAR-01 DIST. CACHAR ASSAM
6:THE CHIEF EXECUTIVE OFFICER CACHAR ZILA PARISHAD P.O. SILCHAR DIST. CACHAR ASSAM PIN- 788001 Advocate for the Petitioner : MR. M K CHOUDHURY Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
14.11.2023
1. Heard Mr. M. Khan, learned counsel for the petitioners and Mr. Pavlov Handique, learned counsel appearing on behalf of Mr. K. Konwar, learned counsel for the P&RD Department.
2. The petitioners herein have challenged the impugned order dated 22.05.2023 issued by the Deputy Commissioner, Cachar transferring the petitioners, who are Gaon Panchayat Secretaries. The petitioners’ case is that the delegation of the power to transfer Gaon Panchayat Secretaries from Director, P&RD, now designated as Commissioner, P&RD to the Deputy Commissioner, vide the Notification dated 17.05.2023 issued by the Secretary to the Government of Assam, P&RD Department, has to be set aside, as the power to transfer cannot be delegated to the Deputy Commissioner of a District in terms of Section 30(1) read Section 138(1) of the Assam Panchayat Act, 1994 (hereinafter referred to as “the 1994 Act”).
3. The counsel for the petitioners submits that in terms of Section 30(1) of the 1994 Act, the Director of P&RD Department, who has now been designated as Commissioner of P&RD Department, is the Appointing Authority of the provincialised Gaon Panchayat Secretaries. He submits that in view of the above Section 30(1) of the 1994 Act, it is only the Director/Commissioner, P&RD Department, who can transfer Gaon Panchayat Secretaries and not the Deputy Commissioner.
4. The learned counsel for the petitioners further submits that in view of Section 138 of the 1994 Act, wherein it has been stated that “except where expressly provided to the contrary”, the power of delegation has been given to the Government. However, the Government does not have the power to transfer the power of the Director/Commissioner, P&RD Department to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, in terms of the 1994 Act. Thus, as the Government has no power to delegate the power of transfer of the Director/Commissioner, P&RD Department to the Deputy Commissioners, the impugned order dated 22.05.2023 and Notification dated 17.05.2023 should be set aside.
5. On the other hand, Mr. Pavlov Handique, learned counsel appearing on behalf of Mr. K. Konwar, learned counsel for the P&RD Department submits that FR 15 gives power to the State Government to transfer a Government servant from one post to another. He also submits that Section 138(1) of the 1994 Act allows for the State Government to delegate it’s power to transfer an employee to any Government officer of Gazetted rank. As the Deputy Commissioner is a Government servant of Gazetted rank, there is no infirmity with delegating the Government’s power of transfer to the Deputy Commissioner. He also submits that there is nothing in the 1994 Act to show that the State Government has delegated the power of the Director/Commissioner, P&RD Department to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, inasmuch as, the Government by itself has the power to transfer Gaon Panchayat Secretaries. He accordingly submits that there being no infirmity with the delegation of the Government power to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, the writ petition should be dismissed.
6. I have the learned counsels for the parties.
7. For disposal of his case, the relevant provisions of the 1994 Act, i.e, Section 30, Section 138 and FR 15 are re-produced below :
“30. Staff of Gaon Panchayat - (1) There shall be a Secretary, and other staff as may be prescribed by Government in every Gaon Panchayat who shall be appointed as provided in S. 140 (1) and/or deputed by Government from time to time. In respect of the provincialised employees, the Director of Panchayat and Rural Development shall be the appointing authority.
(2) The Secretary shall be in charge of the office of the Gaon Panchayat and shall perform and exercise all the powers and duties imposed or conferred upon him by or under this Act, any rules or bye-laws made thereunder.
(3) The salaries etc., of the employees of the Gaon Panchayat shall b
