Gauhati High Court
Dr Atindra Kumar Adhikari vs The State Of Assam And 3 Ors on 22 July, 2016
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
WP(C) 588/2016
Dr. Atindra Kumar Adhikari,
S/o. Lt. Shyam Kanta Dev Adhikari,
R/o. Lachit Nagar, House No.69,
Guwahati-781007.
.. Petitioner
Versus
1. State of Assam,
Represented by Commissioner and Secretary to the Govt.
of Assam, Health and Family Welfare Department,
Dispur, Guwahati-6.
2. Secretary to the Govt. of Assam,
Health and Family Welfare Department,
Dispur, Guwahati-6.
3. Dr. Bhabani Prasad Chakraborty,
i/c Director of Medical Education, Assam,
Principal-cum-Chief Superintendent,
Fakhruddin Ali Ahmed Medical College & Hospital,
Barpeta, Dist.Barpeta, Assam.
4. Dr. Kabul Chandra Saikia,
Son of late Lamdodar Saikia,
R/o. House No.7, Golap Borbora Path,
Anil Nagar, Rajgarh Link Road,
Guwahati-781007, Assam.
.. Respondents
For the petitioner :: Mr. K.N. Choudhury, Sr. Advocate, Mr. R. Dubey, Advocate Ms. A.B. Kayastha, Advocate For the respondents :: Mr. D. Das, Senior Advocate, Mr. S. Khound, Advocate, Mr. R. Singha, Advocate Mr. JMA Choudhury, SC, Health.
WP(C) 3168/2016 Dr. Bhabani Prasad Chakravarty, S/o. Late Shyama Prasad Chakravarty, R/o. Sugam Path, Page No.2 Zoo Road Tini-Ali, Guwahati-781024, Assam.
.. Petitioner Versus
1. State of Assam, Represented by Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, Guwahati-6.
2. Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, Guwahati-6.
3. Joint Secretary to the Govt. of Assam, Health and Family Welfare (B) Department, Dispur, Guwahati-6.
4. Dr. Atindra Kumar Adhikari, S/o. Lt. Shyam Kanta Dev Adhikari, R/o. Lachit Nagar, House No.69, Guwahati-781007.
.. Respondents WP(C) 3169/2016 Dr. Bhabani Prasad Chakravarty, S/o. Late Shyama Prasad Chakravarty, R/o. Sugam Path, Zoo Road Tini-Ali, Guwahati-781024, Assam.
.. Petitioner Versus
1. State of Assam, Represented by Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, Guwahati-6.
2. Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, Guwahati-6.
3. Dr. Atindra Kumar Adhikari, S/o. Lt. Shyam Kanta Dev Adhikari, R/o. Lachit Nagar, House No.69, Guwahati-781007.
.. Respondents
Page No.3
For the petitioners :: Mr. D. Das, Sr. Advocate,
Mr. S. Khound, Advocate,
Mr. R. Singha, Advocate
For the respondents :: Mr. K.N. Choudhury, Senior Advocate,
Mr. R. Dubey, Advocate
Ms. A.B. Kayastha, Advocate
Mr. JMA Choudhury, SC, Health.
PRESENT
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 22.06.2016
Date of judgment : 22.07.2016
JUDGEMENT AND ORDER (CAV)
This order will dispose of three writ petitions, WP(C) Nos.588, 3168 and 3169 of 2016.
2. Heard Mr. K.N. Choudhury, learned Senior counsel for the petitioner in WP(C) No.588/2016, Mr. JMA Choudhury, learned Standing Counsel, Health Department, for respondent Nos.1 and 2 and Mr. D. Das, learned Senior counsel, for respondent No.3 in WP(C) No.588/2016. None has appeared for respondent No.4, though served. Also heard Mr. D. Das, learned Senior counsel for the petitioner in WP(C) Nos.3168 and 3169 of 2016, Mr. JMA Choudhury, learned Standing Counsel, Health Department, for respondent Nos.1, 2 and 3 in WP(C) No.3168/2016 and respondent Nos.1 and 2 in WP(C) No.3169/2016. Also heard Mr. K.N. Choudhury, learned Senior counsel for respondent No.4 in WP(C) No.3168/2016, who is respondent No.3 in WP(C) No.3169/2016. Also perused the record produced by Mr. JMA Choudhury, learned Standing Counsel, Health Department.
WP(C) NO.588/20163. By filing this petition under Article 226 of the Constitution of India, petitioner Dr. Atindra Kumar Adhikari has challenged the legality and validity of the notification dated 01.02.2016 issued by Secretary to the Govt. of Assam, Health and Family Welfare Department, transferring respondent No.3 Dr. Bhabani Prasad Chakraborty, who was then posted as Principal-cum-Chief Superintendent, Fakruddin Ali Ahmed Medical College and Hospital, Barpeta and Page No.4 in-charge Director of Medical Education, Assam, in the same capacity and posting him as Principal-cum-Chief Superintendent, Gauhati Medical College and Hospital (GMCH), Guwahati with effect from the date of taking over charge vice respondent No.4, who superannuated on 31.01.2016 as Principal-cum-Chief Superintendent, GMCH, Guwahati. As per the second part of the said notification, the earlier notification dated 30.01.2016 in respect of the petitioner was cancelled.
4. Facts of the case may be briefly noted.
5. The genesis of the present round of litigation can be traced to a series of transfer orders issued by the State Government in the Health and Family Welfare Department on 01.04.2015. By the aforesaid series of transfer orders, respondent No.3 who was then serving as Principal-cum-Chief Superintendent, Fakruddin Ali Ahmed Medical College and Hospital, Barpeta, was transferred to and posted as Principal-cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh, with effect from the date of taking over charge vice present petitioner who was then serving as Principal-cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh. It was also mentioned that respondent No.3 would hold the current charge of the office of Director of Medical Education, Assam, vice Prof. (Dr.) Dhruba Jyoti Bora who was relieved from his engagement. By another notification of the same date, respondent No.4 who was then serving as Principal-cum-Chief Superintendent, GMCH, Guwahati, was transferred to and posted in the same capacity at Barpeta vice respondent No.3 as transferred above. By another notification of the same date, present petitioner was transferred from Dibrugarh and posted in the same capacity at Guwahati vice respondent No.4 who was transferred as noticed above. The last notification of even date forming part of the chain of notifications posted Prof. (Dr.) Ratan Kumar Kataki as in-charge Principal-cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh with effect from the date of taking over charge from the petitioner.
6. The notification transferring respondent No.4 from Guwahati to Barpeta was put to challenge before this Court by respondent No.4 by filing WP(C) No.1944/2015. Challenge was made primarily on the ground that respondent No.4 had hardly nine months of service left for superannuation. It was contended Page No.5 that at the fag end of his service career, such transfer was totally unwarranted and was, therefore, arbitrary, besides being contrary to established conventional practice.
7. This Court by order dated 02.04.2015, had issued notice and passed an interim order staying the notification dated 01.04.2015 pertaining to transfer of petitioner from Guwahati to Barpeta. During the proceeding of the said writ petition, a related issue of critical importance came to light, namely, filling up of the post of Director of Medical Education (DME), Assam since holding of the said post on in-charge basis by respondent No.3 got intertwined with the series of transfer orders. This led to filing of two other writ petitions relating to filling up of the post of DME in accordance with the provisions of Assam Medical Education Service Rules, 2008. All the writ petitions were heard together and were disposed of by a common order dated 31.08.2015. In so far the post of DME was concerned, appointment of respondent No.3 as in-charge DME was quashed. Health Department was directed to fill up the post of DME by following the procedure laid down in the Assam Medical Education Service Rules, 2008 within three months. In so far challenge by respondent No.4 to his transfer order was concerned, matter was remanded back to the Health Department to reconsider the grievance of respondent No.4 by taking all relevant factors into consideration.
8. It is stated that though the matter was carried over in appeal by respondent No.3, writ appeals filed by respondent No.3 were disposed of by a Division Bench of this Court with slight modification of the common order dated 31.08.2015 with regard to the post of DME without interfering with that portion of the order relating to transfer of respondent No.4. It is stated that the Division Bench allowed respondent No.3 to continue as in-charge DME till filling up of the post on regular basis.
9. Thereafter, the State respondents took a decision to allow respondent No.4 to complete his tenure at Guwahati and cancelled the transfer order of respondent No.4 vide order dated 16.12.2015. As a result, petitioner remained at Dibrugarh and respondent No.3 remained at Barpeta with additional charge of DME.
10. Respondent No.4 was due to retire from service on attaining the age of superannuation on 31.01.2016. In that view of the matter, Secretary to the Govt. of Assam, Health and Family Welfare Department, issued notification dated Page No.6 30.01.2016 transferring Prof. (Dr.) Arabinda Das, Principal-cum-Chief Superintendent, Tezpur Medical College and Hospital, Tezpur and OSD attached to the office of the DME as Principal-cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh, vice petitioner transferred.
11. According to the petitioner, he handed over the charge at Dibrugarh on 30.01.2016 and assumed charge of the office of Principal-cum-Chief Superintendent, GMCH, Guwahati on 01.02.2016 since 31.01.2016 was a holiday (Sunday).
12. One day after issuance of the transfer order dated 30.01.2016, impugned notification dated 01.02.2016 was issued by the Secretary to the Govt. of Assam, Health and Family Welfare Department, transferring respondent No.3 from Barpeta to Guwahati with effect from the date of taking over charge vice respondent No.4, who had gone on superannuation on 31.01.2016. As per second part of the said notification, the earlier notification dated 30.01.2016 in respect of the petitioner stood cancelled.
13. Aggrieved, present writ petition has been filed.
14. This Court by order dated 03.12.2016, had issued notice and stayed the impugned notification dated 01.02.2016.
15. Respondent No.3 has filed counter affidavit as well as an application for vacation of the interim order dated 03.02.2016 which has been registered as IA No.999/2016.
16. In his counter affidavit, respondent No.3 has highlighted his meritorious service record and has contended that his credentials are far better than the petitioner. Various alleged shortcomings of the petitioner have also been mentioned including suspension of the petitioner on account of visiting foreign country without proper and prior approval of the Government during which period one student at Dibrugarh was murdered. Respondent No.3 has also contended that there were procedural irregularities in reinstatement of the petitioner in service and consequential regularization of the suspension period. He has also contended that handing over of charge by the petitioner at Dibrugarh and his taking over of charge at Guwahati were also irregular. Petitioner had handed over charge to the Vice Principal at Dibruagarh at 6 pm on 30.01.2016, beyond office hours. He also took over charge at Guwahati on 01.02.2016 unilaterally without any order to that effect. On the basis of their Page No.7 present age, petitioner would continue in service till 31.03.2020 whereas respondent No.3 would retire on 31.01.2018 much before the petitioner. Therefore, respondent No.3 deserves a chance to be the Principal-cum-Chief Superintendent of GMCH, the premier medical institution of the State. That apart, respondent No.3's wife is suffering from multiple ailments requiring constant medical care and attention. Posting at Guwahati would enable respondent No.3 to properly look after his wife. Respondent No.3 has raised another issue that there is discrepancy in the petitioner's date of birth. According to respondent No.3, petitioner's year of birth would be around 1950-1951 whereas in the departmental records, he has got his date of birth recorded as 01.04.1954. It is also stated that Prof. (Dr.) Anup Kumar Barman was appointed as DME on 26.02.2016. Contending that there is no merit in the challenge to order dated 01.02.2016, respondent No.3 seeks dismissal of the writ petition.
17. Respondent Nos.1 and 2 have not filed affidavit. But learned Standing Counsel, Health Department, has produced the record during the course of hearing.
18. Submissions made by learned counsel for the parties have received the due consideration of the Court.
19. This Court while passing the order dated 03.02.2016, had considered the challenge made by the petitioner to the impugned notification dated 01.02.2016. Since a somewhat detailed order was passed, the same is extracted hereunder:
"Dr. B.P. Chakraborty has filed a caveat through Mr. D. Das, learned Senior counsel and Mr. S. Khound, learned counsel, in respect of notification dated 01.02.2016 issued by the Secretary to the Govt. of Assam, Health and Family Welfare Department, posting him as Principal- cum-Chief Superintendent, Gauhati Medical College and Hospital. Caveator will be heard.
Caveat stands discharged.
Heard Mr. K.N. Choudhury, learned Senior counsel, assisted by Mr. R. Dubey, learned counsel for the petitioner.
Petitioner was serving as Principal-cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh. By notification dated 30.01.2016 issued by the Secretary to the Govt. of Assam, Health and Family Welfare Department, he was transferred in the same capacity and posted as Principal-cum-Chief Superintendent of Gauhati Medical College and Hospital with effect from the date of taking over charge vice Prof. (Dr.) Kabul Chandra Saikia, Principal-cum-Chief Superintendent of Gauhati Medical College and Hospital who was due to superannuate on 31.01.2016.Page No.8
It is on record that the said Secretary had issued another notification on 30.01.2016 transferring Prof. (Dr.) Arabinda Das, Principal-cum-Chief Superintendent, Tezpur Medical College and Hospital as Principal-cum- Chief Superintendent, Assam Medical College and Hospital, in place of the petitioner. Documents annexed to the writ petition shows that the petitioner had handed over the charge at Dibrugarh on 30.01.2016 in the afternoon. 31.01.2016 being a holiday on account of Sunday, petitioner assumed charge of the office of Principal-cum-Chief Superintendent of Gauhati Medical College and Hospital at 10 am on 01.02.2016. This was informed to the said Secretary. An office order dated 01.02.2016 was issued by the petitioner in his capacity as Principal-cum-Chief Superintendent, Gauhati Medical College and Hospital informing all concerned that he had taken over the charge as Principal-cum-Chief Superintendent of Gauhati Medical College and Hospital with effect from 01.02.2016.
Suddenly the impugned notification dated 01.02.2016 was issued by the said Secretary whereby respondent No.3 serving as Principal-cum-Chief Superintendent, Fakruddin Ali Ahmed Medical College and Hospital, Barpeta, and in-charge Director of Medical Education, Assam, has been transferred and posted as Principal-cum-Chief Superintendent, Gauahti Medical College and Hospital, from the date of taking over charge vice Prof. (Dr.) Kabul Chandra Saikia who superannuated on 31.01.2016. The second part of the said notification mentions that the earlier notification dated 30.01.2016 in respect of the petitioner stands cancelled. Mr. Choudhury, learned Senior counsel, submits that the impugned notification dated 01.02.2016 is absolutely unwarranted and illegal. For no apparent reason, within one day, earlier notification has been cancelled, that too, after the petitioner had handed over the charge at Dibrugarh and had assumed charge at Guwahati. He further submits that respondent No.3 could not have taken charge on 01.02.2016 from Prof. (Dr.) Kabul Chandra Saikia as he had already gone on superannuation on 31.01.2016.
Mr. Das, learned Senior counsel, appearing for respondent No.3 submits that respondent No.3 had joined on 01.02.2016 itself in terms of the impugned notification.
Mr. J.M.A. Choudhury, learned Standing Counsel, Health Department, submits that at the moment, he has no instruction but would like to place the relevant file before the Court for consideration. Two facts are prima facie discernible from the impugned notification dated 01.02.2016. Firstly, as pointed out by Mr. Choudhury, learned Senior counsel for the petitioner, question of respondent No.3 taking over the charge from Prof. (Dr.) Kabul Chandra Saikia on 01.02.2016 does not arise because on that day, Prof. (Dr.) Saikia was no longer holding any office, he having superannuated on the previous day. The second fact which is discernible is that though transfer order of the petitioner dated 30.01.2016 has been cancelled, the second notification dated 30.01.2016 transferring Prof. (Dr.) Arabinda Das from Tezpur Medical College and Hospital to Assam Medical College and Hospital, Dibrugarh, has not been cancelled. Consequence of the impugned notification would be that the petitioner would be without any posting. At this stage, Mr. Das, learned Page No.9 Senior counsel submits that the said order of Prof. (Dr.) Arabinda Das dated 30.01.2016 has also been modified by posting him at Barpeta. Be that as it may, it has to be borne in mind that both the petitioner and respondent No.3 or for that matter Prof. (Dr.) Arabinda Das are very senior faculty members of the Medical Colleges of the State. Within one day of transfer, it ill behoves of the State to cancel the same on the very next day. This is certainly not the way to treat the senior faculty members of the State. Even otherwise, this Court has held time and again that a stay or cancellation of transfer order by subsequent order must be on the basis of sound reasons and overriding public interest. To examine this aspect of the matter, Mr. J.M.A. Choudhury, learned Standing Counsel, Health Department, should produce the relevant record on the next day. In view of the above, let a notice be issued making the same returnable after two weeks.
Mr. JMA Choudhury, learned Standing Counsel, accepts notice on behalf of respondent Nos.1 and 2, Mr. S. Khound, learned counsel, appears for respondent No.3 by filing caveat.
Extra copies during the course of the day.
Notice to respondent No.4 by registered post with AD. Steps during the course of the day.
Having regard to the discussions made above and on due consideration, Court is of the view that an interim order is called for. Accordingly, till the next date, impugned notification dated 01.02.2016 (Annexure 12 to the writ petition) shall remain stayed."
20. A perusal of the record would go to show that the Departmental Secretary had put up a note before the Departmental Commissioner and Secretary on 30.01.2016. It was mentioned that respondent No.4 was retiring from service on 31.01.2016. A petition was received from respondent No.3 to transfer him from Barpeta to Guwahati against the vacancy due to retirement of respondent No.4. However, the Departmental Secretary noted that petitioner had served at Dibrugarh as Principal-cum-Chief Superintendent for four years and that he is due to retire on 31.03.2020. Therefore, it was suggested that Department should stick to its earlier decision with regard to the petitioner. Accordingly, it was proposed that petitioner may be allowed to join at Guwahati and Prof. (Dr.) Arabinda Das be transferred from Tezpur and posted at Dibrugarh. The note-sheet discloses that this proposal was discussed by the Departmental Commissioner and Secretary with the Minister and had obtained his approval. Following the same, order dated 30.01.2016 was issued transferring the petitioner from Dibrugarh to Guwahati.
21. On 01.02.2016, there is a note of the Departmental Secretary addressed to the Commissioner and Secretary stating that as directed by Additional Chief Page No.10 Secretary, transfer order in respect of the petitioner may be cancelled and respondent No.3 may be posted as Principal at Guwahati. This was approved by the Minister on 01.02.2016 who suggested posting of Prof. (Dr.) Arabinda Das at Barpeta. Thereafter, the impugned notification dated 01.02.2016 was issued on the same day.
22. As noticed in the order dated 03.02.2016, within one day of issuance of the notification dated 30.01.2016, impugned notification dated 01.02.2016 was issued. Though in the impugned notification, there is a recital that it was issued in the interest of 'public service', no 'public service' or 'public interest' is discernible from the record. Mere recital of such expression in the transfer notification would not suffice. Interest of 'public service' or 'public interest' must be discernible from the record. As noticed above, as directed by the Additional Chief Secretary, notification dated 30.01.2016 was cancelled without any rhyme or reason. No doubt, transfer and posting of Government officials are matters which are within the realm of the administration and ordinarily Courts would not interfere in such matters. Law is well-settled regarding limited scope of judicial review in matters of transfer and posting of Government servants but within the limited scope, if the writ Court finds the impugned action to be in violation of statutory Rules or being vitiated by mala fides or arbitrariness, Court would be failing in its duty if it shies away from scrutinizing such a challenge. This Court in a number of decisions has held that subsequent order staying or cancelling a previous order issued in public interest must be based on overriding public interest. No such overriding public interest is discernible in this case. Moreover, as noticed in the order dated 03.02.2016, the Department was dealing with Principals of Medical Colleges. Transferring an incumbent on one day following which he hands over his charge and takes over charge in his new place of posting and then cancelling such transfer order the very next day thereby reverting him to the original place of posting is certainly not the way to treat a Principal of a Medical College. Such action may undermine the dignity, status and authority associated with the office of Principal of a Medical College. Respondent No.3 may have his personal grievance and his desire for a posting at Guwahati may be genuine considering his personal hardship but that would not justify such reckless and whimsical action of the respondents in transferring and then cancelling transfer of a Principal of a Medical College within one or two days.
Page No.1123. For all the aforesaid reasons, Court is of the view that matter would require reconsideration of the Departmental Secretary. Accordingly, while setting aside the impugned order dated 01.02.2016, matter is remanded back to the Secretary to the Govt. of Assam, Health and Family Welfare Department, for a fresh consideration of the matter without being influenced by any other authority. This shall be done within a period of 30 days from today.
24. WP(C) No.588/2016 is accordingly disposed of.
WP(C) 3168/2016 This petition has been filed by respondent No.3 in WP(C) No.588/2016 Dr. Bhabani Prasad Chakraborty seeking a direction to the authorities of the Health Department (respondent Nos.1,2 and 3) to conduct a detailed enquiry to ascertain the correct age of respondent No.4, Dr. Atindra Kumar Adhikari, petitioner in WP(C) No.588/2016.
2. According to the petitioner, he had submitted application before the Health and Family Welfare Department, Govt. of Assam under the Right to Information Act, 2005 regarding the age of respondent No.4. As per answer given to the queries made by the petitioner, date of birth of respondent No.4 is 01.04.1954 but as per National Register of Citizens (NRC) of the year 1951, respondent No.4 was shown as a one year old boy meaning thereby that he was born in the year 1950. Therefore, petitioner contends that respondent No.4 has not disclosed his true age which calls for a detailed enquiry. But authorities in the Health Department have not applied their mind to this aspect of the matter. In this connection, petitioner submitted representations dated 08.02.2016 and 26.02.2016 but no decision has been taken thereon. If the petitioner was born in the year 1950, his date of superannuation cannot be 31.03.2020 which has been put forward by the departmental authorities. It is in the above context, that the present writ petition has been filed seeking the relief as indicated above.
3. Without much dilation, Court is of the view that the instant writ petition appears to be misconceived. The remedy of writ jurisdiction is available to an affected person for enforcement of his fundamental or statutory right and not for establishment of one's right. In the present case, as per allegation of the Page No.12 petitioner, there is some discrepancy in the age of respondent No.4 which needs to be enquired into by the State. I am afraid; such a relief can be acceded to in a proceeding under Article 226 of the Constitution of India.
4. In Devki Nandan Verma Vs. State of Haryana and another, 1995 Supp (3) SCC 431, the Supreme Court has held that rectification of date of birth of a Government servant is a matter between the person concerned and the State Government and no other person has locus standi to prefer a caveat in such a matter.
5. If a third party has no locus standi to prefer a caveat in a matter relating to rectification of date of birth of another person, he would have much less locus standi to institute a challenge to the same by invoking the writ jurisdiction of the Court. Moreover, present writ petition came be filed only on 23.05.2016 much after filing of WP(C) No.588/2016 by respondent No.4 on 02.02.2016. Filing of the present writ petition appears to be a retaliatory move on the part of the petitioner.
6. For the aforesaid reasons, this Court finds no good reason to entertain this writ petition which is accordingly dismissed.
WP(C) 3169/2016 In this case, Dr. Bhabani Prasad Chakraborty as the petitioner has challenged the legality and validity of the notification dated 30.01.2016 issued by the Secretary to the Govt. of Assam, Health and Family Welfare Department, transferring Dr. Atindra Kumar Adhikari, respondent No.3 in this case and petitioner in WP(C) No.588/2016, and posting him as Principal-cum-Chief Superintendent of Gauhati Medical College and Hospital (GMCH), Guwahati.
2. At the relevant point of time, respondent No.3 was serving as Principal- cum-Chief Superintendent, Assam Medical College and Hospital, Dibrugarh. By the impugned notification, dated 30.01.2016, he was transferred in the same capacity and posted as Principal-cum-Chief Superintendent at GMCH, Guwahati with effect from the date of taking over charge vice Prof. (Dr.) Kabul Chandra Saikia, Principal-cum-Chief Superintendent, GHMC, Guwahati who was due to superannuate on 31.01.2016.
3. As has already been noticed in the deliberation of WP(C) No.588/2016, this impugned notification dated 30.01.2016 was cancelled by the subsequent Page No.13 notification dated 01.02.2016 issued by the Secretary to the Govt. of Assam, Health and Family Welfare Department, impugned in the said writ petition, whereby present petitioner, who was serving as Principal-cum-Chief Superintendent, Fakruddin Ali Ahmed Medical College and Hospital, Barpeta and in-charge DME, was transferred in the same capacity and posted as Principal- cum-Chief Superintendent, GMCH, Guwahati.
4. Technically speaking, in so far Government record is concerned, impugned notification dated 30.01.2016 no longer exists, the same having been cancelled by the subsequent notification dated 01.02.2016 which has been put to challenge by respondent No.3 by filing WP(C) No.588/2016. In the proceedings of WP(C) No.588/2016, subsequent notification dated 01.02.2016 has been set aside. Though the same may amount to reviving the previous notification dated 30.01.2016, the matter has been remanded back to the Government for re- consideration. In such circumstances, instant challenge made by the present petitioner appears to be misconceived.
5. In any event, the notification dated 30.01.2016 whereby respondent No.3 was transferred to and posted as Principal-cum-Chief Superintendent, GMCH, cannot be construed to be an order prejudicially affecting the rights of the present petitioner. In such circumstances, no interference would be called for. Even otherwise also, having regard to the order passed in WP(C) No.588/2016, no further order would be called for in the present proceeding.
6. The Supreme Court has time and again held that a Government servant has no vested right to remain at a place of his choice. He cannot insist that he should be posted in any particular place.
7. For the aforesaid reasons and having regard to the order passed in WP(C) No.588/2016, Court is of the view that no further order would be called for in the present proceeding which is accordingly disposed of.
All the three writ petitions are disposed of in the manner indicated above. Record produced by the learned Standing Counsel is returned back. No cost.
JUDGE Dutt Page No.14