Dismissed

Md. Mainur Ali @ Mainul Ali v. the State of Assam and 6 Ors.

Gauhati HC14 Jun 2022WP(C)/3976/2022

Case brief

AI extract

What is this about?

Petitioner, a Gaon Panchayat Secretary, challenged a transfer order citing physical injury and lack of authority. The Court noted the petitioner had completed a three-year tenure. Citing precedents, the Court held transfer orders are not violative and stated a government servant must report to the new posting before litigation. The petition was dismissed and prior stay vacated.

What did the court decide?

Transfer order upheld; earlier challenged transfer order staled as infructuous; interim stay vacated. Liberty to file representation within 10 days.

Md. Mainur Ali @ Mainul Ali Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010116572022

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

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Case No. : WP(C)/3976/2022

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MD. MAINUR ALI @ MAINUL ALI S/O MANIR ALI, R/O VILL- AMANI (NALANA), P.O.-AMANI, P.S.-BELSOR, DIST- NALBARI, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI, PIN-781006, KAMRUP (M) DISTRICT, ASSAM

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2:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM PANJABARI JURIPAR GUWAHATI PIN-781037 KAMRUP(M) DISTRICT ASSAM

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3:THE CHIEF EXECUTIVE OFFICER NALBARI ZILLA PARISHAD NALBARI ASSAM PIN-781335

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4:THE BLOCK DEVELOPMENT OFFICER PACHIM NALBARI DEVELOPMENT BLOCK DIST-NALBARI ASSAM PIN-781335

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Page No.# 2/6

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5:THE PROJECT DIRECTOR DISTRICT RURAL DEVELOPMENT AGENCY NALBARI ASSAM PIN-781335

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6:THE PRESIDENT I/C NO. 21 UTTAR KHETRI DHARAMPUR GAON PANCHAYAT NALBARI ASSAM

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7:MD. AKIB JAVED TCRM 28 NO. BARNADDI GAON PANCHAYAT UNDER PASCHIM NALBARI DEV. BLOCK PIN-78130

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Advocate for the Petitioner : MR. N BARMAN

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Advocate for the Respondent : SC, P AND R.D.

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Linked Case No. : WP(C)/2919/2020

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MAINUL ALI S/O. MANIR ALI, VILL. AMANI, (NALANA), P.O. AMANI, P.S. BELSOR, DIST. NALBARI, ASSAM.

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VERSUS

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THE STATE OF ASAM AND 6 ORS REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI, PIN-781006, KAMRUP (M) DISTRICT, ASSAM.

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2:THE COMMISSIONER

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PANCHAYAT AND RURAL DEVELOPMENT ASSAM PANJABARI JURIPAR GUWAHATI PIN-781037 KAMRUP (M) DIST. ASSAM.

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Page No.# 3/6

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3:THE CHIEF EXECUTIVE OFFICER NALBARI ZILA PARISHAD NALBARI ASSAM PIN-781335.

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4:THE BLOCK DEVELOPMENT OFFICER

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PACHIM NALBARI DEVELOPMENT BLOCK DIST. NALBARI ASSAM PIN-781335. 5:THE PROJECT DIRECTOR

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DISTRICT RURAL DEVELOPMENT AGENCY NALBARI ASSAM. 6:THE PRESIDENT (I/C) NO.21 UTTAR KHETRI DHARAMPUR GAON PANCHAYAT NALBARI ASSAM. 7:DHARANI BARUAH G.P SECRETARY 23 NO. PASCHIM DHARMAPUR G.P UNDER PASCHIM NALBARI DEVELOPMENT BLOCK DISTRICT- NALBARI ASSAM PIN- 781335

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Advocate for the Petitioner : MR. N BARMAN

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Advocate for the Respondent : SC, PNRD

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 14-06-2022

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Heard Mr. N. Barman, learned counsel for the petitioner, who submits that the petitioner’s transfer order dated 26.05.2022, transferring the petitioner from 21 No. Uttar Khetri, Dharmapur Gaon Panchayat under Paschim Nalbari Dev. Block to Pachim Nalbari Dev. Block HQ should be set aside, on the ground that he has got severe injury on his leg and due to which, plates, pins and antenna have been inserted into his leg.

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2. The petitioner’s counsel also submits that the petitioner was earlier transferred from 21 No. Uttar Khetri, Dharmapur Gaon Panchayat under Paschim Nalbari Dev. Block to 23 No. Paschim Dharmapur Gaon Panchayat under Paschim Nalbari Dev. Block vide office order dated 10.06.2020. However, the office order dated 10.06.2020 was challenged by the petitioner vide WP(C) No. 2919/2020 and this Court, vide order dated 30.07.2020 had stayed the operation of the transfer order dated 10.06.2020. The petitioner’s counsel thus submits that as there is a stay operating in WP(C) No. 2919/2020, the present transfer order should also be stayed and eventually set aside. He also submits that the Chief Executive Officer is not the competent authority to issue the transfer order.

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3. Mr. N.K. Dev Nath, learned Standing counsel PNRD submits that the injury on the petitioner’s leg had occurred on 24.10.2018 and the petitioner cannot be allowed to take the excuse of his old injury to object to the transfer order. He also submits that as per the O.M dated 08.07.2020 issued by the Commissioner

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of Panchayat & Rural Development, Government of Assam, the tenure of a Gaon Panchayat Secretary is normally for 3 (three) years in a Gaon Panchayat. As the petitioner had completed his tenure of 3 (three) years in 21 No. Uttar Khetri, Dharmapur Gaon Panchayat under Paschim Nalbari Dev. Block, there is no infirmity with the impugned transfer order dated 26.05.2022.

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4. I have heard the learned counsels for the parties.

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5. As can be seen from the documents on record, the petitioner has been in his present place of posting for more than 3 (three) years and in terms of the O.M dated 08.07.2020, the tenure of a Gaon Panchayat Secretary is normally for 3 (three) years. As such, this Court is of the view that the transfer of the petitioner cannot be said to be in violation of any guidelines or Rules made by the Government. Further, in the case of State of U.P. & Ors. Vs. Gobardhan Lal, (2004) 11 SCC 402, the Apex Court has held that transfer orders should not be interfered with unless there is a malafide exercise of power or unless it is violative of any statutory provision, or issued by an authority not competent to do so.

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6. In the present case, there is no stand taken by the petitioner that the impugned transfer order has been made due to some malafide exercise of power or that it is violative of any statutory provision. Further, though the petitioner has taken a stand that the transfer order has been issued by an authority not competent to do so, the office O.M dated 08.07.2020 states that a Gaon Panchayat Secretary may be transferred by the Chief Executive Officer. In the present case, the impugned transfer order has been issued by the Chief Executive Officer, Nalbari Zilla Parishad.

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7. In the case of S.C. Saxena Vs. Union of India & Others, (2006) 9 SCC 583, the Apex Court has held that a Govt. servant cannot disobey a transfer order, by not reporting at the place of the posting then go to a Court with his grievance. It is his duty to first report for work where he is transferred and then make a representation as to what may be his personal problems. Such tendency of not reporting to a place of posting and indulging in litigation needs to be curbed. Assuming that there was some illness or injury, the same does not prevent the petitioner from joining his place of posting.

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8. In view of the reasons stated above, this Court does not find any reason to set aside the impugned transfer order dated 26.05.2022. Further, in view of the impugned transfer order dated 26.05.2022, the earlier transfer order dated 10.06.2020, which was stayed by this Court in WP(C) No. 2919/2020 has become redundant. WP(C) No. 2919/2020 having become infructuous, the said writ petition is closed as infructuous. The interim order passed in WP(C) No. 2919/2020 is hereby vacated. The present writ petition being devoid of merit is hereby dismissed. However, the petitioner is at liberty to file a representation to the authorities, with regard to his grievance, within 10 (ten) days from today. The respondents shall on receipt of the petitioner’s representation take a decision on the same, within a period of 2 (two) weeks from the date of receipt of the petitioner’s representation and a copy of this order.

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JUDGE

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Comparing Assistant

Md. Mainur Ali @ Mainul Ali v. the State of Assam and 6 Ors.

Case brief

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Md. Mainur Ali @ Mainul Ali v. the State of Assam and 6 Ors.

Case brief

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What the court decided

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