Krishna Kamal Deuri vs State Of Assam And 4 Ors

1) Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner and Mr. P.N. Goswami, learned Addl. Advocate General for the State.

2) By this writ petition, the petitioner has assailed his transfer orders dated 23.02.2021 and 26.02.2021.

3) Issue notice returnable on 28.07.2021. As the learned counsel assisting the learned Addl. Advocate General accepts notice on behalf of all the

respondents, requisite extra copies of the writ petition be furnished to him within 3 (three) days.

4) Heard both sides on the prayer for interim relief.

5) The learned counsel for the petitioner had submitted that the petitioner was transferred by orders dated 23.02.2021 and 26.02.2021 due to

Assembly election in the State, which he refers to as “election transferâ€. However, the said transfer orders were kept in abeyance by order dated

01.03.2021, pursuant to directives issued by the Election Commission of India. It is submitted that a representation was submitted by the petitioner on

06.03.2021 before the Principal Secretary to the Government of Assam, Environment and Forest Department through proper channel, but the

authorities have not taken any decision thereon. It is also submitted that in the month of February 2020 the petitioner was transferred on being

promoted to the post of Deputy Conservator of Forest and posted as Deputy Conservator of Forest in the office of the respondent no.5 and therefore,

it is submitted that the petitioner would not have been transferred prior to expiry of 3 years tenure in the same place of posting. It is also submitted that

as per instructions dated 18.12.2020 from the Election Commission of India, the petitioner was otherwise exempted from transfer as he was not

directly connected with pending election duty and being a Wildlife Branch staff, the petitioner is exempted from election duty. Accordingly, it is

submitted that the transfer of the petitioner is on extraneous considerations. It is also submitted that in order to challenge the said two transfer orders

dated 23.02.2021 and 26.02.2021, the petitioner had approached this Court by filing WP(C) 1811/2021, but in view of the letter/ order dated

01.03.2021 issued by the Joint Secretary to the Government of Assam, Environment and Forest Department the said transfer orders were kept in

abeyance and accordingly, this Court by holding that in view of the said letter dated 01.03.2021, the writ petition had become infructuous, the writ

petition was closed. It is submitted that notwithstanding that the elections are over, the respondent authorities are again seeking to enforce the said two

transfer orders dated 23.02.2021 and 26.02.2021 on some extraneous considerations. It is also submitted that the petitioner is on leave since

16.06.2021 and the petitioner being a Gazetted officer except for the State government authorities, the PCCF and Head of Forest Force, Assam

(respondent no.5) and his subordinate officers had no power of jurisdiction or competence to take over charge in his absence. Accordingly, the learned

counsel for the petitioner prays for stay of the order of transfer.

6) Per contra, the learned Addl. Advocate General has submitted that for transfer of the petitioner and others before the expiry of the normal tenure,

approval from the concerned Departmental Minister and the Chief Minister was obtained, which came within the exception to the normal rule

governing transfer and in support of his contentions, the learned Advocate General has produced the scanned copies of the relevant record through e-

mail, which is retained on record.

7) From the tone and tenor of the transfer order dated 23.02.2021 and 26.02.2021, as annexed to this writ petition, the Court is prima facie unable to

accept that the petitioner was transferred for election duty. From the order 01.03.2021, it appears that the transfer orders were kept in abeyance till

clearance was received from the Election Commission of India and that after the elections are over, there was no impediment for the competent

authority of the State to give effect and/ or to enforce the orders of transfer. Therefore, the Court is of the considered opinion that when the transfer

orders dated 23.02.2021 and 26.02.2021 indicate that the transfer was in the interest of public service, the petitioner is bound to join his place of

posting without prejudice to the present writ petition as the legality of the order of transfer has been questioned by the petitioner in this writ petition.

8) The Court is also unable to give its seal of approval of the petitioner to remain on leave so as to avoid handing over charge. Therefore, although the

learned counsel for the petitioner has submitted that forceful or unilateral taking over of charge is not permissive but it is the case of the petitioner that

he applied for leave for 16th, 17th and 18th June, 2021 and according to his learned counsel the petitioner is in continued leave till today. Such a

situation would not preclude the respondent authorities to take over the charge of the office held by the petitioner unilaterally when the petitioner for

one reason or the other, fails to attend his office.

9) In view of the discussions made herein before, the Court is not inclined to stay the operation of the impugned order of transfer dated 23.02.2021

and 26.02.2021.

10) However, it may be mentioned that the petitioner has submitted his representation dated 06.03.2021 to the Principal Secretary to the Government

of Assam, Environment and Forest Department, who is not a party in this writ petition. Therefore, the learned Additional Advocate General for the

State shall instruct that the said authority should dispose of the said representation dated 06.03.2021 (Annexure-2A of the writ petition) submitted by

the petitioner within a period of 2(two) weeks.

11) All the parties in this writ petition including the learned counsel of the petitioner and the Additional Advocate General for the State would be at

liberty to download a copy of this order from the website and act accordingly because in view of the Covid-19 pandemic the Court is inclined to

exempt all parties from obtaining certified copies, if so desired.