Gauhati High Court
Golap Chandra Das vs The State Of Assam & 7 Ors on 11 August, 2017
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. WRIT PETITION (C) NO.2861 OF 2017
Golap Chandra Das,
Son of Late Pratap Chandra Das,
Resident of Village: Bhurkuchi,
PO: Niz Namati, PS: Tihu, District: Nalbari,
Assam, PIN - 781355.
........Petitioner
-Versus-
1. The State of Assam, represented by the
Commissioner & Secretary to the Government of Assam,
Home & Political Department, Dispur, Guwahati -
781006.
2. The State Coordinator, National Register of Citizens
(NRC), Assam, Achyut Plaza (1st Floor), Bharalupar,
Bhangagarh, Guwahati - 781005.
3. The Secretary to the Government of Assam, Water
Resources Department, Dispur, Guwahati - 781006.
4. The Deputy Commissioner & District Registrar of
Citizen Registration (DRCR), Barpeta, Assam, PO:
Barpeta, PIN - 781301.
5. The Additional Deputy Commissioner & Additional
District Registrar of Citizen Registration (ADRCR),
Barpeta, Assam, PO: Barpeta, PIN - 781301.
6. The Circle Officer & Circle Registrar for Citizens
Registration, Bajali Revenue Circle, Patacharkuchi, PO:
Bajali, District: Barpeta, PIN - 781326.
7. The Executive Engineer,
Barpeta Water Resources Division, Barpeta, PO:
Barpeta, PIN - 781301.
8. Bipul Choudhury,
Village: Barbhala, PO: Gobindapur, District: Barpeta,
PIN - 781326.
........Respondents
WP(C) No.2861/2017
WP(C) No.2958/2017 Page 1 of 9
For the petitioner : Mr. K.N. Choudhury, Senior Advocate.
For respondent Nos.1 to 7 : Ms. M. Bhattacharjee, Government Advocate.
For respondent No.8 : Mr. D.K. Das, Advocate.
2. WRIT PETITION (C) NO.2958 OF 2017
Bipul Choudhury,
Assistant Executive Engineer,
Son of Bimal Chand Choudhury, Village: Barbhang
(Machkhowapara) District: Barpeta, PIN - 781325,
Assam.
........Petitioner
-Versus-
1. The State of Assam, represented by the Principal
Secretary to the Government of Assam, Water
Resources Department, Dispur, Guwahati - 781006,
Assam.
2. The Secretary to the Government of Assam, Water
Resources Department, Dispur, Guwahati - 781006,
Assam.
3. The Deputy Commissioner, (NRC Cell),
District: Barpeta, Assam, PIN - 781301.
4. Golap Chandra Das, AEE (C), Bajali Water Resources
Sub-Division, Bajali, District: Barpeta, Assam, PIN-
781301.
........Respondents
For the petitioner : Mr. D.K. Das, Advocate.
For respondent Nos.1 to 3 : Ms. M. Bhattacharjee, Government Advocate.
For respondent No.4 : Mr. K.N. Choudhury, Senior Advocate.
B E F O R E
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Date of hearing & Judgment & Order : 11th August, 2017.
WP(C) No.2861/2017
WP(C) No.2958/2017 Page 2 of 9
JUDGMENT & ORDER (ORAL)
Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner in WP(C) No.2861/2017, Ms M. Bhattacharjee, learned State counsel appearing for the respondent Nos.1 to 7 and Mr. D.K. Das, learned counsel appearing for the respondent No.8.
2. I have also heard Mr. D.K. Das, learned counsel for the petitioner in WP(C) No.2958/2017, Mr. K.N. Choudhury, learned senior counsel representing respondent No.4 and Ms M. Bhattacharjee, learned State counsel appearing for respondent Nos.1 to 3.
3. As agreed to by the learned counsel for the parties, the two writ petitions are taken up for disposal today.
4. In WP(C) No.2861/2017, challenge is to an order dated 06.05.2017 issued by the Secretary to the Government of Assam, Water Resources Department transferring and posting the petitioner, who is an Assistant Executive Engineer (Civil) working in Bajali Water Resources Sub-Division, Bajali as Assistant Executive Engineer (TC) P.G.P. (W.R.) Division in place of respondent No.8, who was transferred to the post held by the petitioner of WP(C) No.2861/2017. In other words, posting of the petitioner and the respondent No.8 in WP(C) No.2861/2017 was interchanged.
5. WP(C) No.2958/2017 was filed by the respondent No.8 of WP(C) No.2861/2017 for implementation of the transfer order dated 06.05.2017 alleging that he was not handed over charge.
6. The challenge in WP(C) No.2861/2017 is mounted on the premise that as the petitioner was appointed as Local Registrar of Citizens Registers (LRCR) under National Register of Citizens (NRC) by an order dated 22.07.2015 and is engaged in the NRC updating process, he cannot be transferred before completion of the NRC process.
7. However, on perusal of the order dated 19.05.2017 passed in WP(C) No.2861/2017, by which the interim prayer made by the petitioner was declined, it WP(C) No.2861/2017 WP(C) No.2958/2017 Page 3 of 9 would appear that the stand was scaled down and a submission was advanced that the order of transfer dated 06.05.2017 was not sustainable as such transfer did not have the approval of the Coordinator of NRC.
8. Order dated 19.05.2017 will further go to show that in the light of the Court's order dated 17.05.2017, Ms Bhattacharjee was required to obtain instruction as to whether the transfer order was issued with approval of the State Coordinator, NRC. On instruction Ms Bhattacharjee had submitted that the State Coordinator of the NRC had approved the transfer of the petitioner from Bajali to Mirza. Having regard to the above submission and also taking note of the fact that respondent No.8 had joined at Bajali on 08.05.2017, the Court declined to pass interim order suspending the transfer order dated 06.05.2017.
9. A notification dated 06.05.2015 was issued by the Additional Secretary to the Government of Assam, Personnel (A) Department on the subject of transfer and posting of officers appointed as LRCR/Additional Local Registrar of Citizens Registers (ALRCR) to the Additional Chief Secretaries/Principal Secretaries/Commissioners and Secretaries/Secretaries laying down that officers engaged as LRCR/ALRCR may not be transferred without approval of the State Coordinator, NRC. The said letter reads as follows:
"With reference to the subject cited above, I am directed to say that, officers appointed as Local Registrar of Citizens Registers (LRCR) and Additional Local Registrar of Citizens Registers (ALRCR) for updation of National Register of Citizens (NRC) Assam, may not be transferred without approval of the State Coordinator, NRC, Assam during the period of updation.
It has also been decided that replacement shall be provided with, against any such official transferred as per procedure above, during the period of NRC updation and exemption of duties selected to NRC updation shall be granted only with the approval of the State Coordinator, NRC, Assam.
It is therefore requested that the above instruction may kindly be adhered to."
10. The writ petitioner thereafter filed an application for stay of operation of a letter dated 01.06.2017, which was registered as IA(C) No.2016/2017. By the said WP(C) No.2861/2017 WP(C) No.2958/2017 Page 4 of 9 letter, the writ petitioner in WP(C) No.2958/2017 (respondent No.8 in WP(C) No.2861/2017) was requested to assume charge of Assistant Executive Engineer (Civil), Bajali Water Resources Sub-Division, Bajali, unilaterally with immediate effect. The said letter had reference to the order passed by this Court on 19.05.2017 in WP(C) No.2958/2017 as well as the order dated 19.05.2017 in WP(C) No.2861/2017. In the order dated 19.05.2017 passed in WP(C) No.2958/2017, the Court had taken note of the order passed in WP(C) No.2861/2017.
11. The petitioner in WP(C) No.2861/2017 had also filed an application for amendment of the writ petition which is registered as IA(C) No.2015/2017. However, Mr. Choudhury has submitted that he does not want to press the application.
12. From the affidavit of respondent No.4, i.e. the Deputy Commissioner, Barpeta, it appears that the Secretary to the Government of Assam, Political (A) Department and Executive Director, NRC had addressed a letter dated 18.05.2017 to the Deputy Commissioner, Barpeta directing him not to release the petitioner in WP(C) No.2861/2017 from the position of LRCR, Bajali Development Block, NSK-10 under Bajali Revenue Circle till completion of NRC work as this would badly hamper the NRC up-gradation work. He was also requested to cancel the release order dated 09.05.2017 passed by the Additional Deputy Registrar of Citizens Registers (ADRCR) as the same was issued without the approval of the State Coordinator, NRC. On the basis of the said letter, the Additional Deputy Commissioner and ADRCR, Barpeta had cancelled the release order dated 09.05.2017 and the petitioner was asked to continue his duty as LRCR of NSK-10 under Bajali Revenue Circle.
13. In the affidavit of the respondent No.2 in WP(C) No.2861/2017, who is the Commissioner and Secretary to the Government of Assam and Political Department and State Coordinator, NRC, at paragraph 3 it is stated as follows:
"3. That with regard to the statements made in paragraph 3 of the writ petition the deponent begs to state that the deponent has issued a letter No. SPMU/NRC/Dist Co. Equip/68/2015/Pt1/256 signed on 03.12.2015 informing all Deputy Commissioners about Order of the Hon'ble Supreme Court dated 01.12.2015 wherein it is stated that "we direct all the state personnel WP(C) No.2861/2017 WP(C) No.2958/2017 Page 5 of 9 deployed in connection with NRC shall henceforth do and perform only works relating to the updation/presentation of the NRC and they will not be assigned any other duty till the completion of the process." It may be added however that this order dated 01.12.2015 was modified by the Hon'ble Supreme Court vide order dated 13.01.2016 which reads as "we reiterate our previous order which is to the effect that the preparation/upgradation of the work of NRC would be of top most priority and the officials and employees of the State Government currently engaged in the preparation of the NRC would be primarily and principally engaged with the said work. However, without affecting the primacy and priority to the upgradation work of the NRC such officers would also attend to other duties as prayed for by the State of Assam and to Election duties as prayed for by the Election Commission. We also make it clear that in the event the Deputy Commissioners of the Districts feel the necessity it will be open for them to assign the other duties of the office as well as the work in connection with the forthcoming elections to the State Assembly to one or more of his Additional Deputy Commissioners as may be deemed necessary. Beyond the above, we do not consider it necessary to modify our previous order dated 1st December, 2015." Further, in this connection, Order of Hon'ble Gauhati High Court dated 29.02.2016 in W.P.(C) No. 386/2016 - Soram Nongban Singh -VS- State of Assam & Ors. is also referred to, wherein it is ordered that "before various departments of the State Government carry out any exercise relating to transfer and promotion of State Government employees, prior consultation with the State Coordinator, NRC Assam may be insisted upon so as to eliminate any scope of hampering NRC related works and to ensure that there is no violation of the order of the Hon'ble Supreme Court." The copy of the order dated 29.02.2016 in W.P.(C) No. 386/2016 has already been sent to Principal Secretary to the Govt. of Assam, Personnel Department, Assam for information along with the soft copy of the database of the State Government employees entrusted with NRC related works in a DVD in compliance of the Hon'ble High Court's order."
14. Perusal of the averments made in the affidavit would go to show that the Hon'ble Supreme Court had directed that preparation/upgradation of the work of NRC shall be given top-most priority and the officials and employees of the State WP(C) No.2861/2017 WP(C) No.2958/2017 Page 6 of 9 Government currently engaged in the preparation of the NRC shall be primarily and principally engaged with the said work. This Court had also observed that before various departments of the State Government carry out any exercise relating to transfer and promotion of State Government employees, prior consultation with the State Coordinator, NRC, Assam may be insisted upon so as to eliminate any scope of hampering NRC related works and to ensure that there is no violation of the order of the Supreme Court. In the said affidavit, a categorical stand is taken that the release order dated 09.05.2017 was issued without taking prior approval from the State Coordinator, NRC. Though not specifically stated in the affidavit, averments made in paragraph 3 would go to show that prior to issuance of the order of transfer dated 06.05.2017, no approval of the State Coordinator, NRC was obtained.
15. It, thus, appears that incorrect instructions were furnished to Ms Bhattacharjee based on which submission was advanced by her that State Coordinator of the NRC had approved the transfer of the petitioner from Bajali to Mirza, as recorded in the order of this Court dated 19.05.2017.
16. A letter dated 18.05.2017 by the Secretary to the Government of Assam, Political Department & Executive Director, NRC, Assam was issued to the Secretary to the Government of Assam, Water Resources Department regarding cancellation/ modification of the transfer order of the petitioner as the transfer would adversely affect the NRC up-gradation process.
The relevant portion of the letter dated 18.5.2017 reads as follows:
"Sub: Reg. Cancel/modification of transfer order of Sri Golap Ch. Das, LRCR, Block Division Office, NSK-10 under Bajali Rev. Circle.
Ref: 1. CRCR, Bajali's letter No.BJN(NRC)-8/2015/Pt.1/201 dtd. 11/05/2017
2. ADRCR Barpeta's Order No.BANRC-3/DPMU/LRCR OFFICIAL/VOL-1/ 2016/223-A dtd. 09/05/2017 Sir, With reference to the subject cited above and letters under reference, I am directed to inform you that a letter from Circle Officer, Bajali Rev. Circle has been received regarding transfer of Sri Golap Ch. Das, AEE(WR), Bajali Water WP(C) No.2861/2017 WP(C) No.2958/2017 Page 7 of 9 Resources Sub-Division, Bajali who has been engaged in NRC works as LRCR at Block Division Office NSK (NSK-10), Bajali since July, 2015 and has been rendering his services in NRC updation works most sincerely and with best satisfaction to his higher authority. Now it is learnt that Sri Das is under order of transfer vide Govt. Notification No.WR(E)59/2006/134 dated 06/05/2017 from Bajali Water Resources Sub-Division to P.G.P.(WR) Division, Mirza.
As you are aware that the most crucial phase of updating of NRC i.e. verification process is currently under way in the state and any transfer or change of place of posting of officers at this stage shall adversely affect the NRC updation process. Therefore, in the interest of the smooth and timely completion of NRC works, the transfer orders may be modified for posting them in the present district or they may attached in present place of posting after joining the new place of posting so that these officers can continue to attend NRC works in the same place. The officers engaged in the NRC related works will be released by the controlling officer only after the completion of their allotted works of updating of NRC."
17. A reading of the said letter will go to show that the Executive Director, NRC, in view of the crucial phase of updating of NRC, opined that the present transfer order of the petitioner in WP(C) No.2861/2017 will adversely affect NRC updation process and therefore, requested modification of the transfer order making it clear that officers engaged in the NRC related works will be released by the controlling officer only after the completion of updating of NRC.
18. Though order of this Court dated 19.05.2017 goes to show that the respondent No.8 in WP(C) No.2861/2017 had joined at Bajali on 08.05.2017, it is clear from the letter dated 01.06.2017 of the Secretary to the Government of Assam, Political (A) Department addressed to the respondent No.8, requesting him to take over charge unilaterally, that no handing over and taking over of charge of the post in question had taken place. Mr. Das has also submitted that the respondent No.8 of WP(C) No.2861/2017, on being released from his earlier posting at Mirza, had submitted his joining report at Bajali though formal handing over and taking over of charge had not taken place on 08.05.2017.
WP(C) No.2861/2017 WP(C) No.2958/2017 Page 8 of 919. Mr. Das has further submitted that for the months of May, June and July, 2017, the respondent No.8 in WP(C) No.2861/2017 had received his salary. Though he may have been drawing his salary as an Assistant Executive Engineer (Civil), Bajali, it is important to bear in mind that petitioner in WP(C) No.2861/2017 is still discharging his duties as LRCR at Bajali but, the petitioner in WP(C) No.2861/2017 had not been paid his salary. It is pointed out by the parties that LRCR is not a substantive post and therefore, to draw salary one has to be in a substantive post.
20. In view of the above discussions, I am of the considered opinion that the impugned order of transfer dated 06.05.2017 is liable to be set aside as no approval of the State Coordinator, NRC was obtained before such transfer and also for the reason that the transfer order cannot be said to be issued in public interest as it had directly interfered with NRC work which is to be accorded top-most priority in terms of the order of the Supreme Court.
21. Accordingly, impugned order dated 06.05.2017 is set aside and quashed. However, in view of the letter dated 18.05.2017 of the Secretary to the Government of Assam, Political (A) and Executive Director, NRC to the Secretary to the Government of Assam, Water Resources Department, the Secretary to the Government of Assam, Water Resources Department is left at liberty to consider transfer and posting of the petitioner and respondent No.8 in WP(C) No.2861/2017 afresh without affecting the NRC work undertaken by the petitioner in WP(C) No.2861/2017.
22. The State respondents will ensure payment of salary to the petitioner for the period for which he had not been paid salary by taking appropriate measure. Needless to say, the respondent No.8 shall also be paid his due salary.
23. The two writ petitions stand disposed of in terms of the above directions. No cost.
JUDGE MCD/M. Sharma WP(C) No.2861/2017 WP(C) No.2958/2017 Page 9 of 9