Gauhati High Court
Manoj Kumar vs Akash Deep And 5 Ors on 20 October, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/10
GAHC010137932020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1611/2020
1:MANOJ KUMAR
S/O- SRI JAYRAJ KRISHNA, PRESENTLY POSTED AS SECY. TO THE GOVT.
OF ASSAM, AGRICULTURAL DEPTT., DISPUR, GHY-6
VERSUS
1:AKASH DEEP AND 5 ORS.
S/O- SRI RAMADHAR KANCHAN, R/O- IAS COLONY, KHANAPARA, GHY-21,
KAMRUP (M), ASSAM
2:THE UNION OF INDIA
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSIONS (DEPTT. OF PERSONNEL AND
TRAINING) NORTH BLOCK
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
4:THE STATE OF MEGHALAYA
REP. BY THE CHIEF SECY. TO THE GOVT. OF MEGHALAYA
SHILLONG
MEGHALAYA- 793001
5:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GHY-6
Page No.# 2/10
6:THE ASSAM-MEGHALAYA JOINT CADRE AUTHORITY
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-
Advocate for the Petitioner : MR H K DAS
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C) 3579/2020
1:AKASH DEEP
S/O- SRI RAMADHAR KANCHAN
R/O- IAS COLONY
KHANAPARA
GHY-21
KAMRUP (M)
ASSAM
VERSUS
1:MANOJ KUMAR AND 5 ORS.
S/O- SRI JAYRAJ KRISHNA
PRESENTLY POSTED AS SECY. TO THE GOVT. OF ASSAM
AGRICULTURAL DEPTT.
DISPUR
GHY-6
2:THE UNION OF INDIA
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSIONS (DEPTT. OF PERSONNEL AND
TRAINING) NORTH BLOCK
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
4:THE STATE OF MEGHALAYA
REP. BY THE CHIEF SECY. TO THE GOVT. OF MEGHALAYA
SHILLONG
Page No.# 3/10
MEGHALAYA- 793001
5:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GHY-6
6:THE ASSAM-MEGHALAYA JOINT CADRE AUTHORITY
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
Advocate for the Petitioner : MR. D SAIKIA
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C) 4424/2020
1:MANOJ KUMAR
S/O. SRI JAYRAJ KRISHNA
PRESENTLY POSTED AS SECRETARY TO THE GOVT. OF ASSAM
AGRICULTURAL DEPTT.
DISPUR
GUWAHATI-06.
VERSUS
1:THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSIONS (DEPTT. OF PERSONNEL AND
TRINING) NORTH BLOCK
NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-06.
3:THE STATE OF MEGHALAYA
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MEGHALAYA
SHILLONG
MEGHALAYA-793001.
4:THE SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
Page No.# 4/10
DISPUR
GUWAHATI-06.
5:THE ASSAM MEGHALAYA JOINT CADRE AUTHORITY
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-06.
6:AKASH DEEP
IAS
S/O. SRI RAMADHAR KANCHAN
R/O. IAS COLONY
KHANAPARA
GUWAHATI-21
KAMRUP (M)
ASSAM.
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH
HON'BLE MR. JUSTICE MANISH CHOUDHURY
:: O R D E R ::
20.10.2020 [N. Kotiswar Singh, CJ(Acting)] Heard Mr. U.K. Nair, learned senior counsel assisted by Mr. H. K. Das, learned counsel for the applicant in I.A.(C) No. 1611/2020 andfor the petitioner in WP(C) No. 4424/2020 &for the respondent No.1 in WP(C)No. 3579/2020.
Also heard Mr. D. Saikia, learned senior counsel assisted by Mr. B. Gogoi, learned counsel for the respondent No. 1 in I.A.(C) No. 1611/2020 and for respondent No. 6 in WP(C) 4424/2020 &for the petitioner in WP(C) 3579/2020.
Heard also Mr. R. Dhar, Ld. Additional Government Advocate for the State.
2. The writ petition [WP(C) No. 3579/2020] arises out of an interim order passed by the Ld. Central Administrative Tribunal (CAT), Guwahati Bench on 07.09.2020 in Original Page No.# 5/10 Application no. 040/00183/2020 by which the transfer order dated 29.08.2020 was kept in abeyance till the next date.
3. The said transfer order was challenged by Sri Manoj Kumar, IAS [Applicant before the CAT and respondent in Writ Petition No. 3579/2020]. By the said transfer order, Sri Manoj Kumar was transferred and released with effect from 29.08.2020 and was placed at the disposal of the Government of Meghalaya, vice Sri Akash Deep, IAS [the present writ petitioner in WP(C) No. 3579 of 2020 and respondent before the CAT]on reversal from Inter Cadre deputation.
4. The Ld. CAT considering the submission advanced by Sri Manoj Kumar, the Applicant therein that the Applicant has not yet completed two years as Secretary to the Government of Assam and that his wife is in advanced stage of pregnancy and the expected date of delivery is sometime in the month of December 2020 and also had two minor children, and keeping in mind the present Covid situation, kept in abeyance the aforesaid transfer order dated 29.08.2020.
The Ld. CAT, accordingly, directed that the Applicant, Sri Manoj Kumar be allowed to render his service as Secretary to the Government of Assam, Agriculture Department and Director, Agriculture, Assam, Project Director, Chief Minister's Samagra Granya Unnayan Yojana and State Prabhari Officer, Baksa till the next date.
5. Being aggrieved by the aforesaid order passed by the Ld. CAT, the writ petition, WP(C) No. 3579 of 2020,has been preferred by Sri Akash Deep (respondent before the CAT).
6. When this matter was taken up by this Court on 16.09.2020, this Court after taking into consideration certain communications contained in the documents dated 02.09.2020, 05.09.2020 and 02.09.2020 made an observation that Sri Akash Deep had in fact joined the State of Assam and attended meaningful meetings and that Sri Manoj Kumar did not report in the State of Meghalaya though he had been released with effect from 29.08.2020 and his service was placed at the disposal of the Government of Meghalaya.
Page No.# 6/10 This Court then took the view that the Ld. CAT passed an order which had the effect of restoring status quo ante in a proceeding in which the affected party had not been given notice, which amounted to turning the clock back. This Court observed that Sri Akash Deep had already joined on 29.08.2020 and as such there does not appear to be any occasion in law to keep the order dated 29.08.2020 in abeyance.
7. This Court, accordingly, granted liberty to Sri Akash Deep to present his case before the CAT without any delay and without fail so that the CAT can adjudicate as per its jurisdiction and pass appropriate orders as required in the facts and circumstances of the case and as per law. However, it was also directed that Sri Akash Deep shall continue to serve in the joint Assam Meghalaya Cadre as per posting order dated 29.08.2020 by observing that this Court has not considered the legality or otherwise of any order challenged before the Tribunal, or any aspect of the matter which is required to be done by the CAT.
8. Sri Manoj Kumar, the respondent in WP(C) No. 3579 of 2020has filed the interlocutory application [IA (C) No. 1611 of 2020] seeking modification of the aforesaid interim order passed by this Court on 16.09.2020 in WP(C) No. 3579 of 2020 on various grounds, inter alia, that Sri Akash Deep, the writ petitioner unauthorisedly took over charge of the office of the Commissioner and Secretary,Department of Agriculture, and Director, Agriculture Department on 29.08.2020 and 31.08.2020 respectively and in clear violation of Rule 145 of Assam Financial Rules.
It has been also contended that transfer and posting of an All India Service Officer has to be effectuated on the recommendation of the Joint Cadre Authority [JCA] as per the All India Services (Joint Cadre) Rules, 1972 and in the present no such recommendation of the JCA preceded the impugned transfer order.
9. Thus, the legality of the act of taking over charge as Commissioner and Secretary of Agriculture Department, Government of Assam on 29.08.2020 by Sri Akash Deep as well as the validity of the transfer order is questioned by Manoj Kumar. It is to be noted that it is this act of taking over charge on 29.08.2020, which is the basis for this Court to pass the order on 16.09.2020 allowing Akash Deep to continue to serve in the Joint Assam Meghalaya Cadre as per posting order dated 20.08.2020.
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10. From the above, the situation obtaining then appears to be that while the Ld. CAT allowed Sri Manoj Kumar to render his service as Secretary to Government of Assam, Agriculture Department etc. vide order dated 07.09.2020 of the Ld. CAT, this Court by the interim order dated 16.09.2020 on the other hand, changed the position by allowing Sri Akash Deep to continue to serve in the joint Assam-Meghalaya Cadre as per posting order dated 29.08.2020.
11. While the matter was pending as such before this Court, the matter was taken up by Ld. CAT on 09.10.2020 but the CAT declined to extend the interim order passed on 07.09.2020.
Ld. CAT in the order dated 09.10.2020 observed that the Hon'ble High Court had already observed from various documents issued by public servants in discharge of their public duties that order dated 29.08.2020 had already been acted upon by the petitioner (Sri Akash Deep) and also noted the observation of the Hon'ble High Court that "in the considered opinion of this Court, at this juncture status-quo ante could not have been restored particularly without hearing the affected party."
Ld. CAT went on to observe that while the matter was taken up by the CAT on 07.09.2020, both the learned counsel for the Applicant (Manoj Kumar) and the learned Senior Government Advocate, State of Assam representing the Government of Assam had failed to submit that the private respondent No. 6 had already joined as the Commissioner and Secretary, Government of Assam, Agriculture Department on 29.08.2020.
12. It may be noted that these are the same grounds on which this Court passed the order on 16.09.2020 allowing Sri Akash Deep (Non Applicant) to continue to serve in terms of the transfer order dated 29.08.2020.
Being aggrieved by the subsequent order dated 09.10.2020 passed by the Ld. CAT, Shri Manoj Kumar, Applicant filed the writ petition, WP(C) No. 4424/2020 challenging the aforesaid order.
13. It may be noted that the proceedings in WP(C) No.3579/2020 and I.A.(C) No. 1611/2020 arose out of the ex-parte interim order passed by the Ld. CAT on 07.09.2020 and the proceeding in W.P.(C) No. 4424/2020 arises out of the subsequent interim order dated Page No.# 8/10 09.10.2020 passed by the Ld. CAT.
14. As mentioned above, this Court passed the order on 16.09.2020 reversing the interim order passed by the Ld. CAT on 07.09.2020 based on the contention of the Non Applicant Sri Akash Deep that he had already taken over charge in terms of the transfer order dated 29.08.2020. However, the validity of this act of assuming charge has been questioned by the Applicant Sri Manoj Kumar. It has been contended that unilateral taking over of charge by Sri Akash Deep was not valid. Further, the Applicant Sri Manoj Kumar also assailed the impugned transfer order dated 20.08.2020 on the ground that it was not preceded by any recommendation of the JCA as per the All India Services (Joint Cadre) Rules, 1972.
Subsequently, the Ld. CAT again passed the order on 09.10.2020 by declining to extend the earlier interim order passed on 07.09.2020 primarily on the same ground on which the this Court passed the order on 16.09.2020 in WP(C) No. 3579/2020.
15. From the above, what appears is that the Ld. CAT initially passed the interim order on 07.09.2020 which was however, a reversed by this Court on 16.09.2020 in W.P.(C) No. 3579 of 2020 based on certain documents whose validity has been questioned by the contesting party and the Ld. CAT subsequently declined to extend the earlier order dated 07.09.2020 based on the same grounds on which this Court passed the order on 16.09.2020.
16. Thus, we are called upon the consider the issue of unilateral taking over of charge by Sri Akash Deep and the effect of the documents dated 02.09.2020, 05.09.2020 etc. as well the effect, if any, of the absence of the recommendation of the JCA before passing the impugned transfer order on 29.08.2020.
In our opinion, these may be also relevant factors to be considered at the time of passing appropriate interim order by the CAT, either in granting it or denying it, apart from the plea of the Non Applicant Sri Akash Deep that he had already taken over charge on 29.08.2020 in terms of the impugned transfer order and the plea of the Applicant Manoj Kumar as referred to above.
17. We have also noted that this Court did not consider these relevant materials or factors when this Court passed the order on 16.09.2020. Though we could have proceeded Page No.# 9/10 to consider these aspects also in deciding the correctness or otherwise of the order passed by the Ld. CAT in initially passing an interim stay order or in declining to continue it subsequently, we are not opting to do so, for the reason that any observation made by us in these proceedings may not appropriate at this stage when the matter is at the initial stage of adjudication before the Ld. CAT. Rather, we deem it appropriate that the Ld. CAT should decide the matters finally after hearing all the contesting parties as any observation made by this Court at this stage on any of the aspects canvassed before us may have some bearing on the Ld. CAT while finally adjudicating the issues.
18. Therefore, we are of the view that rather than going further into the matter by touching upon various aspects already raised in the Application before the Ld. CAT, it will be more appropriate if the Ld. CAT considers the same finally after hearing all the parties.
19. Accordingly, we dispose of I.A.(C) No. 1611/2020 as well as both the writ petitions, WP(C) No. 3579/2020 and WP(C) No. 4424/2020 by remanding the matter to the Ld. CAT for final disposal of the Application pending before it on the next date already fixed by the Ld. CAT.
However, if for any reason, the matter cannot be finally disposed of, the Ld. CAT may pass fresh appropriate orders as regards the interim order sought by the Applicant therein on that day or on such date as may be fixed by the Ld. CAT.
20. Mr. D. Saikia, learned senior counsel for the writ petitioner in WP(C) No. 3579/2020 submits that the writ petitioner and Non Applicant Shri Akash Deep has already taken over charge as the Commissioner and Secretary, Agriculture Department, Government of Assam and In-charge of Director, Agriculture Department and as such, his status may not be disturbed till the disposal of the OA.
We have noted that this Court vide order dated 16.09.2020 has already allowed Sri Akash Deep to serve in the Joint Cadre of Assam and Meghalaya as per the posting order dated 20.08.2020 to continue to hold charge, though this order is sought to be modified/vacated in I.A.(C) No. 1611 of 2020. However, we have opted not to make any observation, much less a decision on this for the reasons stated above.
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21. At the same time, Mr. Nair, learned senior counsel appearing for the Applicant(Shri Manoj Kumar) in I.A.(C) No. 1611/2020 submits before this Court that since there is still a vacant post of Secretary in the Agriculture Department under the Government of Assam, it may not be a bar to the State Government of Assam to consider posting him there till the matter is resolved by an appropriate order that may be passed by the Ld. CAT. If that is so, the Government of Assam may consider it.
We also make it clear that if the Applicant before the CAT, Sri Manoj Kumar has not yet joined the Government of Meghalaya in terms of the impugned transfer order dated 29.08.2020 as contended by him, no coercive action be taken against him on the strength of the impugned transfer order dated 29.08.2020 till appropriate order is passed by the Ld. CAT in this regard.
22. We would also like to clarify that all the observations made or views expressed by this Court so far in these proceedings touching upon the merit of case are purely tentative in nature as this Court has not made any conclusive and final finding and as such the Ld. CAT would proceed with the matter in its own wisdom in accordance with law without being influenced by any observation or view expressed by this Court in these proceedings relating to the merit of the case.
23. With the above observations and directions I.A.(C) No. 1611/2020 as well the writ petitions, WP(C) No. 3579/2020 and WP(C) No. 4424/2020 are disposed of.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant