Disposed

Bornali Gogoi v. the State of Assam and 3 Ors.

Gauhati HC25 Apr 2022WP(C)/1922/2022

Case brief

AI extract

What is this about?

High Court held that a transfer order which had been acted upon by the employee joining the new post could not be cancelled. However, since the cancellation order was not served, the Court disposed of the petition allowing the petitioner to remain in her new posting while leaving the department free to pass a fresh order if required.

What did the court decide?

Petitioner permitted to continue in the new posting; no bar on respondents to pass fresh orders.

Bornali Gogoi Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

¶1

Page No.# 1/4

¶2

GAHC010052192022

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C)/1922/2022

¶5

BORNALI GOGOI W/O- PRATIM BARUA, R/O- HOUSE NO. 27, KALYANI NAGAR, KAHILIPARA, GUWAHATI-781019 IN THE DISTRICT OF KAMRUP(M), ASSAM

¶6

VERSUS

¶7

THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-05, ASSAM

¶8

2:THE DIRECTOR SOCIAL WELFARE GOVERNMENT OF ASSAM M.G. ROAD UZANBAZAR GUWAHATI-01 KAMRUP(M) ASSAM

¶9

3:THE CHILD DEVELOPMENT AND PROJECT OFFICER CHAMARIA ICDS PROJECT NAGARBERA KAMRUP PIN- 781127 ASSAM

¶10

4:THE CHILD DEVELOPMENT AND PROJECT OFFICER PASCHIM MANGALDOI ICDS PROJECT DARRANG PIN- 784529 ASSA

¶11

Page No.# 2/4

¶12

Advocate for the Petitioner : MR. P MAHANTA Advocate for the Respondent : GA, ASSAM

¶13

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

¶14

Date : 25-04-2022

¶15

JUDGMENT & ORDER (ORAL)

¶16

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.

¶17

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.

¶18

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 IA(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.

¶19

Page No.# 3/4

¶20

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.

¶21

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.

¶22

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.

¶23

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.

¶24

Page No.# 4/4

¶25

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.

¶26

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.

¶27

The writ petition is disposed of in the above terms.

¶28

JUDGE

¶29

Comparing Assistant

Bornali Gogoi v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Bornali Gogoi v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Tarka Bahadur Cheti @ Tarkabahadur Chetry Vs the State of Assam and 3 Ors.

Prabhat Nath and 7 Ors. Vs the Presiding Officer and Ors.

Bacchu Das Vs the State of Assam and 4 Ors.

Dilip Das and 6 Ors. Vs the State of Assam and 3 Ors.

Simi Roy Vs the State of Assam and 3 Ors.

Hasima Begum @ Hasima Bibi Vs the State of Assam and 11 Ors.