Manoj Kumar Chaturvedi and 7 Ors v. The State of Assam and 5 Ors

ORDER

14.11.2023

¶1Heard Mr. M. Khan, learned counsel for the petitioners and Mr. Pavlov Handique, learned counsel appearing on behalf of Mr. K. Konwar, learned counsel for the P&RD Department.

¶2The petitioners herein have challenged the impugned order dated

22.05.2023 issued by the Deputy Commissioner, Cachar transferring the petitioners, who are Gaon Panchayat Secretaries. The petitioners' case is that the delegation of the power to transfer Gaon Panchayat Secretaries from Director, P&RD, now designated as Commissioner, P&RD to the Deputy Page No.# 4/8 Commissioner, vide the Notification dated 17.05.2023 issued by the Secretary to the Government of Assam, P&RD Department, has to be set aside, as the power to transfer cannot be delegated to the Deputy Commissioner of a District in terms of Section 30(1) read Section 138(1) of the Assam Panchayat Act, 1994 (hereinafter referred to as "the 1994 Act").

¶3The counsel for the petitioners submits that in terms of Section 30(1) of the 1994 Act, the Director of P&RD Department, who has now been designated as Commissioner of P&RD Department, is the Appointing Authority of the provincialised Gaon Panchayat Secretaries. He submits that in view of the above Section 30(1) of the 1994 Act, it is only the Director/Commissioner, P&RD Department, who can transfer Gaon Panchayat Secretaries and not the Deputy Commissioner.

¶4The learned counsel for the petitioners further submits that in view of Section 138 of the 1994 Act, wherein it has been stated that "except where expressly provided to the contrary", the power of delegation has been given to the Government. However, the Government does not have the power to transfer the power of the Director/Commissioner, P&RD Department to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, in terms of the 1994 Act. Thus, as the Government has no power to delegate the power of transfer of the Director/Commissioner, P&RD Department to the Deputy Commissioners, the impugned order dated 22.05.2023 and Notification dated 17.05.2023 should be set aside.

Page No.# 5/8

¶5On the other hand, Mr. Pavlov Handique, learned counsel appearing on behalf of Mr. K. Konwar, learned counsel for the P&RD Department submits that FR 15 gives power to the State Government to transfer a Government servant from one post to another. He also submits that Section 138(1) of the 1994 Act allows for the State Government to delegate it's power to transfer an employee to any Government officer of Gazetted rank. As the Deputy Commissioner is a Government servant of Gazetted rank, there is no infirmity with delegating the Government's power of transfer to the Deputy Commissioner. He also submits that there is nothing in the 1994 Act to show that the State Government has delegated the power of the Director/Commissioner, P&RD Department to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, inasmuch as, the Government by itself has the power to transfer Gaon Panchayat Secretaries. He accordingly submits that there being no infirmity with the delegation of the Government power to transfer Gaon Panchayat Secretaries to the Deputy Commissioner, the writ petition should be dismissed.

¶6I have the learned counsels for the parties.

¶7For disposal of his case, the relevant provisions of the 1994 Act, i.e, Section 30, Section 138 and FR 15 are re-produced below : "30. Staff of Gaon Panchayat - (1) There shall be a Secretary, and other staff as may be prescribed by Government in every Gaon Panchayat who shall be appointed as provided in S. 140 (1) and/or deputed by Government from time to time. In respect of the provincialised employees, the Director of Panchayat and Rural Development shall be the appointing authority.

(2) The Secretary shall be in charge of the office of the Gaon Panchayat Page No.# 6/8 and shall perform and exercise all the powers and duties imposed or conferred upon him by or under this Act, any rules or bye-laws made thereunder.

(3) The salaries etc., of the employees of the Gaon Panchayat shall be paid in the manner as may be prescribed by the State Government.

(4) The Gaon Panchayat shall not appoint or engage any person for any post in the Gaon Panchayat.

(5) Regarding discipline and control, the Secretary shall act in all matters under the control of the President of the Gaon Panchayat through whom he shall be responsible to the Gaon Panchayat.

¶138Delegation of powers to the Deputy Commissioner, Sub-divi-sional Officer or any other Gazetted officer - (1) The State Government may delegate any of their powers under this Act or rules framed thereunder except where expressly provided to the contrary to any Government

officer

of

Gazetted

rank.

(2) Except where expressly provided to the contrary, the Government may delegate all or any of the powers of the Deputy Commissioner or the Sub-divisional Officer under this Act or rules framed thereunder to any Government officer of Gazetted rank.

(3) Except where expressly provided to the contrary, the Deputy Commissioner or the Sub-divisional Officer, as the case may be, may delegate all or any of their powers under this Act or rules framed under this Act to any Government officer of Gazetted rank.

(4) The delegation of power under sub-Ss. (1), (2), and (3) shall be an order in writing and such order may be modified or withdrawn at any time.

F.R.15. (a) The State Government may transfer a Government servant from one post to another ; provided that except-

(1) on account of inefficiency or misbehaviour, or Page No.# 7/8

(2) on his written request, a Government servant shall not be transferred, substantively to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended under Rule 14.

(b) Nothing contained in Clause (a) of this rule or in Clause (13) of Rule 9 shall operate to prevent the re-transfer of a Government servant to the post on which he would hold a lien had it not been suspended in accordance with the provisions of Clause (a) of Rule 14.

Decision by the Government of Assam. - Permanent transfers from a higher to a lower scale in anticipation of the abolition of a post are not transfers within the meaning of F.R. 15.

¶8A perusal of Section 30 and 138 of the 1994 Act and FR-15 shows that there is no specific provision which provides that only the Appointing Authority, i.e., the Director of P&RD Department, who has now been designated as the Commissioner of P&RD Department, has the power to transfer Gaon Panchayat Secretaries. In fact FR-15 shows that an order of transfer can be passed by an authority/Government and the power of transfer is not confined only to the Appointing Authority. Thus in the view of the above, the Government being a higher authority than the Director/Commissioner, P&RD, is competent to transfer Gaon Panchayat Secretaries. As such, keeping in view the provisions of FR 15 read with Section 30 of the 1994 Act, this Court is of the view that there is no bar for the Government to delegate it's power to transfer Gaon Panchayat Secretaries to the Deputy Commissioner. Further, Section 138 of the 1994 Act provides that State Government may delegate any of it's powers under the 1994 Act or Rules framed thereunder, except where expressly provided to the contrary, to any Government Officer of Gazetted rank. Thus power of the Page No.# 8/8 Government under the 1994 Act can be delegated to a Government Officer of Gazetted rank, except where expressly provided to the contrary. In the present case, there is nothing to show that there is a bar on the State Government from transferring any Gaon Panchayat Secretary. Section 30 of the 1994 Act only provides that that Director/Commissioner of P&RD Department shall be the Appointing Authority and does not specifically bar the State Government to transfer any Gaon Panchayat Secretary. As such, on a combined reading of FR 15 and Section 138 of the 1994 Act, I am of the view that there is no bar for the State Government to transfer any Gaon Panchayat Secretary. As such, the delegation of power of the Government to transfer Gaon Panchayat Secretaries, vide the impugned Notification dated 17.05.2023, is not in violation of Section 138 of the 1994 Act. Consequently, this Court does not find any infirmity with the impugned order transferring the Gaon Panchayat Secretaries.

¶9The writ petition is accordingly dismissed.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010146542023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3877/2023o MANOJoKUMARoCHATURVEDIoANDo7oORS.o S/O-oLATEoHARIoSHANKARoCHATURVEDI,oVILL.-oBADRIoBASTI,oP.O.o KORAIKANDI,oP.S.oLAKHIPUR,oDIST.oCACHAR,oASSAM,oPIN-o788001. 2:oASIToRANJANoDAS oS/O-oLATEoRASHMOHANoDAS oVILL.-oOLDoFIELDoCOLONY oP.O.oBADARPUR oDIST.oKARIMGANJ oASSAM oPIN-o788006. 3:oBISWAJIToDEY oS/O-oLATEoBIRENDRAoCHANDRAoDEY oVILL.-oSARAToPALLY oP.O.oLINKoROAD oDIST.oCACHAR oASSAM oPIN-o788006. 4:oBIRMANGALoSINGHA oS/O-oLATEoBRAJAMOHANoSINGHA oVILL.-oJOYPURoPT-II oP.O.oJAYPURoRAJAoBAZAR oDIST.oCACHAR oASSAM oPIN-o788107. 5:oMEHERAJoHUSSAINoBARBHUIYA oS/O-oLATEoAJIoUDDINoBARBHUIYA oVILL.-oKANAKPURoPT-IIo(WARDoNO.o14) oP.O.oRANGIRKHARI oDIST.oCACHAR oASSAM PageoNo.#o2/8 oPIN-o788005. 6:oRINKUoBHOWMIK oS/O-oLATEoBIPINoCHANDRAoBHOWMIK oVILL.-oJOYPURoPART-II oP.O.oJOYPURoRAJAoBAGAN oDIST.oCACHAR oASSAM oPIN-o788107. 7:oSANDIPoKUMARoPATOA oS/O-oLATEoGANGAoSAGARoPATOA oVILL.-oITKHOLA oGANDHIoNAGARoROAD oP.O.oSILCHAR oDIST.oCACHAR oASSAM 8:oALOKoKUMARoGHOSH oS/O-oLATEoRAMDAYALoGHOSH oVILL.-oSHILLONGoPATTY oP.O.oSILCHAR-1 oDIST.oCACHAR oASSAo VERSUSo THEoSTATEoOFoASSAMoANDo5oORSo REPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o PANCHAYAToANDoRURALoDEVELOPMENT,oDISPUR,oGUWAHATI-06. 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oDISPUR oGUWAHATI-06. 3:THEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oDISPUR oGUWAHATI-06. 4:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENT oASSAM oPANJABARI oJURIPAR oGUWAHATI-37. Page No.# 3/8 5:THE DEPUTY COMMISSIONER CACHAR SILCHAR P.O. SILCHAR-01 DIST. CACHAR ASSAM 6:THE CHIEF EXECUTIVE OFFICER CACHAR ZILA PARISHAD P.O. SILCHAR DIST. CACHAR ASSAM PIN- 788001 Advocate for the Petitioner : MR. M K CHOUDHURY Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA