Deepak Lala vs State of Assam and Others

H.K. Sema, J.—Heard Mr. A.S. Choudhury, learned counsel for the petitioner and Mr. T.C. Chutia, learned Govt. Advocate for the respondents as well as Mr. N. Choudhury, learned counsel appearing on behalf of the respondent No. 5.

The facts leading to filing of the present writ petition is not very pleasant and rather it exposed a disquieting feature as to how the authority in the guise of issuing transfer order shown favour to a particular officer by exercising the power arbitrarily. The petitioner is a Block Development Officer working under the Department of Panchayat and Rural Development. The 5th respondent is an Assam Civil Service Officer and working as Circle Officer under the Deputy Commissioner, Karimganj. At the relevant time the petitioner was working as Block Development Officer (hereinafter BDO) at Patharkandi Development Block, Karimganj. By an order dated 22.11.2000 he was allowed to hold the additional charge of senior BDO of the Block in addition to his own duties vice the incharge Senior BDO relieved of his charge. By the same notification the respondent No. 5 the Circle Officer who was holding the charge of Senior BDO, Patharkandi Development Block has been relieved of additional charge of Senior BDO, Patharkandi Block with immediate effect in the interest of public service. This notification dated 22.11.2000 in respect of the 5th respondent has an important bearing for the purpose of disposal of the case. It is extracted:

"No. PDD. 2/93/PT.II/59.B : Shri D. Baishya ACS, Circle Officer, Patharkandi in Karimganj Distt. who has been holding additional charge of Sr. BDO, Patharkandi Dev. Block is, hereby relieved of additional charge of Sr. BDO Patharkandi Block with immediate effect in the interest of public service.

"No. PDD.2/93/PT.II/59-C : Shri Deepak Lal, BDO, Patharkandi Dev. Block. Karimganj Distt. Is in the interest of public service allowed to hold additional charge of Sr. BDO of the Block in addition to his own duties vide the I/C Sr. BDO relieved of dual charges.

Pursuant to the aforesaid notification the petitioner has taken charge as Senior BDO of the Block in addition to his own duties. However, by another notification dated 29.11.2000 impugned in this writ petition, the petitioner was again transferred purportedly in the Interest of public service and posted as BDO, Durlaveharra Development Block in the same establishment with effect from the date he takes overcharge. By the same notification bearing No. PDD.2/93/PT.II/64-B the aforesaid notification dated 22.11.2000 relieving the respondent No.5, an officer of Assam Civil Service, from the additional charge of Sr. BDO stood cancelled purportedly in the public interest and he was allowed continue to hold the charge as Sr. BDO of Patharkandi Development Block in addition to his own duties. The Notification reads -

"NO.DD.2/93/PT.II/64-D : Govt. notification vide No. PBB.2/93/ PT.II/59-B dated 22.11.2000 relieving Shri D. Baishya ACS, from the additional charge of Sr. BDO, Patharkandi Dev. Block stands cancelled in the interest of public service. Shri Baishya is hereby allowed to continued as Sr. BDO of Patharkandi Dev. Block in addition to his duties."

It is noticed from the aforesaid notification that barely after 7 days another notification dated 29.11.2000 cancelling the earlier notification dated 22.11.2000 has been issued. Such notification cannot be said to have been issued neither on application of mind nor made in public interest. On the other hand, reading of the notification speaks volume that the subsequent notification dated 20.11.2000 has been issued by exercising the power mala fide and in order to favour and accommodate the 5th respondent. The 5th respondent is an officer of Assam Civil Service working as Circle Officer under the Deputy Commissioner, Karimganj. He is outside the cadre of BDO and was allowed to discharge the functions of Senior BDO purely on temporary basis in the absence of regular BDO. He has no legally enforceable right to continue as BDO as he belongs to the cadre of Assam Civil Service.

While issuing notice of Motion this Court on 11.12.2000 suspended the notification dated 29.11.2000. It is distressing to note that the 5th respondent filed an application registered as Misc. Case No. 1453/2000 with a prayer to vacate the interim order. This would expose the 5th respondent that he was trying his level best to cling on to hold the chair of Senior BDO in addition to his own duty. This would also expose that the impugned notification dated 29.11.2000 has not been issued in public interest, but the same has been issued for extraneous consideration to serve interest of the 5th respondent.

Mr. T. Chutia, learned Govt. Advocate and Mr. N. Choudhury learned counsel for the 5th respondent submits that the order of transfer is in the domain of the executive authority and this court should not interfere with the order of transfer unless the statutory rules has been violated by the executive authority. I am not at all impressed by such submission because as already pointed out that the 5th respondent is not affected by the transfer order. What has aggrieved the petitioner is that the petitioner has been transferred barely within a period 7 days to accommodate and favour the 5th respondent to hold an additional charge of Sr. BDO. Therefore, the intention of mala fide is clearly manifest in the impugned order itself. It is not a case of transfer of simpliciter because of 5th respondent was not at all affected by the transfer order. In my considered view, therefore, in the facts and circumstances of the case as recited above, the impugned notification dated 29.11.2000 has been issued in exercise of the power arbitrarily and tainted with mala fide which deserves interference.

Having said so that the notification date 29.11.2000 allowing the 5th respondent as Circle Officer of the area to hold additional charge of Sr. BDO has been issued against the public interest and contrary to the official communication is well demonstrated in the letters dated 19.11.1999 and dated 14.01.2000 written by the Commissioner and Secretary to the Govt. of Assam. Revenue Department and Secretary to the Govt. of Assam, Personnel (A) Department respectively (Annexure 6 and 7 to the writ petition). In the letter dated 19.11.1999 written by the Commissioner and Secretary to the Govt. of Assam, Revenue Department addressed to the Chief Secretary to the Govt. of Assam pointed out that the practice allowing Circle Officers to hold the charge of Senior Block Development Officer consume much time of the officer and the officers have been left with less time for devoting their official work related to revenue works including realization of revenue and realization of Bakijai fund in Bakijai Proceedings. In the letter it is requested that necessary instruction be issued to all Deputy Commissioner not to allow the Revenue Circle Officers to function as Senior BDO.

There is also another letter dated 14.01.2000 written by the Secretary to the Govt. of Assam addressed to the Commissioner and Secretary. Panchayat and Rural Development Department depreciating the practice of allowing Revenue Circle Officers holding charge of Senior Block Development Officer in addition to the normal duties. The letter suggest that considering the work allotted for revenue collection and Bakijai realization, the practice of allowing revenue Circle Officers to hold the additional charge of Senior Block Development Officer be discontinued. By the aforesaid letter the Commissioner and Secretary, Rural Administration Department was requested to consult the Personnel Department while proposing to give additional duties to ACS Officers. The said letter speaks of approval of the Chief Secretary to the Govt. of Assam.

In spite of the aforesaid correspondences at the level of Commissioner and Secretary, the practice of allowing the Revenue Circle Officers to hold the additional charge of Sr. BDO has been continuing unabated against public interest. It has been highlighted in the aforesaid two letters that when the Revenue Circle Officer is allowed to hold additional charge of Sr. BDO much time has been consumed by the officers functioning as BDO and less time is left with the officer to execute his own entrusted duties in collection of revenue and realization of fine etc. In Bakijai proceedings. Such arrangement is detrimental to public interest has been highlighted in the above said two letters. It is a clear case of public interest pitted against the individual interest and former must prevail over the latter.

While it is true that an officer holding transferable post is liable to be transferred anywhere in the public interest and such matter falls within the domain of the appropriate authority and this Court does not normally interfere with such transfer order made in public interest in exercise of power of Judicial review unless the order of transfer is made against the statutory rules or tainted with mala fide. However, in the case at hand, as already pointed out above, it not a cost of transfer simpliciter. I have already observed that the petitioner has been shifted from his own place of posting in order to hand over charge of Sr. BDO to the 5th respondent who is a Revenue Circle Officer and not at all connected with the functions of BDO. This would show that the order is not only mala fide but against the public interest as by the impugned order the function of Sr. BDO has been handed over to the 5th Respondent who is to well acquainted with the functioning. In other words, the 5th respondent does not possess any expertise with the technical know how of the Block Development Officer under the Rural Development Department who undergo some sort training to carry out rural development activities effectively which knowledge and experience the 5th respondent as Revenue Circle Officer does not possess.

In view of what has been stated above, this writ petition is allowed and the impugned order dated 29.11.2000 is hereby quashed. Further, the notification dated 22.11.2000 is restored.