Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 855 (CAL)

Kamlendar Singh v. UNION OF INDIA

2008-08-22

S.P.Talukdar

body2008
JUDGMENT: 1. BY filing the instant application under Article 226 of the constitution, the petitioner, Kamlendar Singh, has sought to assail the order of transfer being North-East Sector Order No. 91/2008 dated 7th day of May, 2008 issued by the inspector General, Central Industrial Security Force " being respondent No. 3 herein. 2. GRIEVANCES, as ventilated in the present application, may briefly be stated as follows:- Petitioner joined the Central Industrial Security Force, hereinafter referred to as the "cisf" on 30th day of July, 1994. It was in the Recruit Training Centre at Barwaha in the state of Madhya Pradesh. After completion of training course as a Constable there, on 6th day of August, 1995, he was transferred to the CISF Unit of Steel Authority of India limited at Rourkella Steel Plant, Orissa. On 22nd day of July, 1999, he was shifted to the cisf Unit of BCCL at Dhanbad in the State of Jharkhand. Thereafter, on 13th day of january, 2001, he was promoted to the post of Head-Constable/driver. He was sent for basic training at the Recruit Training Centre at Bhilai in the State of Uttar Pradesh. After completion of training there, on 3rd day of April, 2001, he was transferred to the CISF Unit at Rajasthan Atomic Power Station/heavy Water Plant, Kota in the State of Rajasthan. He was again transferred to the CISF Unit of SAIL at Burnpur in West Bengal on 2nd day of may, 2005. To his surprise, the respondent No. 3 issued an order of transfer dated 7th day of may, 2008, thereby shifting the petitioner from Burnpur to CISF Unit of ONGC, Nazira in the State of Assam. A copy of the said order, however, was not handed over to him. The petitioner was, thus, given posting at his home zone i. e. Rajasthan after completion of seven years of service and then again, after a period of four years i. e. in 2005, he was shifted to burnpur, West Bengal. The Circular published in 2008 relating to posting/transfer of the cisf Personnel (Head-Constable, Constable and Followers) by way of guidelines clearly mentions that during the 1st tenure of eight years, one has to be out of home zone. For the 2nd tenure of ten years, one is to be posted in the home zone. Then again, for the 3rd tenure of eight years, one has to be out of home zone. For the 2nd tenure of ten years, one is to be posted in the home zone. Then again, for the 3rd tenure of eight years, one has to be out of home zone. During the final or 4th tenure, one may be posted in home zone subject to availability of vacancies. The petitioner had already completed more than 10 years out of home zone and as such, is entitled to posting in the home zone. The impugned order of transfer is, thus, violative of the guidelines framed by the CISF. In view of such major infirmity in such order, the petitioner approached this court for direction upon the respondent authority to cancel/withdraw the said order. 3. IN response to this, an Affidavit-in-Opposition was filed on behalf of the respondent nos. 1 to 5 wherein the material allegations made by the writ petitioner had been denied. It is not in dispute that the petitioner had already completed the tenure of eight years of posting in Units out of home zone. His name was, thus, sent to CISF Headquarters, New delhi for 25th Inter Zonal Transfer 2008 by the DIG CISF Unit ISP Burnpur vide office letter dated 5. 12. 2007. The CISF Circular regarding tenure of posting is only by way of guidelines and such tenure can be increased/curtailed on administrative grounds as well as for operational need and in public interest. In view of inadequacy of vacancies in the North zone during 25th Inter Zonal Transfer, 2008, the petitioner could not be adjusted in the units in the said Zone during the 25th Inter Zone Transfer, 2008. This was made clear by service order No. 94/2008 dated 14. 3. 2008. 4. IN terms of sub-para (a) of para-8 of the relevant Circular, in the case of Executive staff including Fire trained personnel, tenure of posting in the Unit is three years to be extended by one year on extreme exigencies of service and in the case of Ministerial Staff, tenure of posting in the Unit is four years to be extended by one year on extreme exigencies of service. Since the petitioner is not a Ministerial Staff, the tenure of posting is three years. The relevant Circular also mentions that personnel with more than 10 years of service has to serve for two years in hard areas, which includes North-East Region. Since the petitioner is not a Ministerial Staff, the tenure of posting is three years. The relevant Circular also mentions that personnel with more than 10 years of service has to serve for two years in hard areas, which includes North-East Region. The petitioner has completed his tenure of three years at Burnpur and he has not served in hard areas. The authority, thus, issued the impugned order transferring him to hard areas. The writ petitioner filed an Affidavit-in-Reply alleging therein that such order of transfer is mala fide, illegal and without jurisdiction. 5. ORDINARILY an order of transfer does not deserve to be interfered with unless it is mala fide or in violation of the rules/regulations. In the present case, no attempt has been made to assail the impugned order on the ground of mala fide. As such, there can be no question of trying to assess the circumstances by lifting the veil. It is not alleged that the impugned order is shrouded with mystery and that is required to be unveiled. 6. THIS naturally demands analysis of the various guidelines, which were framed and circulated by issuing circulars from time to time. This is necessary in order to appreciate the submission made by Mr. Dutta that the order of transfer suffers from clear violation of such guidelines. Before proceeding further, it is, perhaps, necessary to mention that guidelines do not necessarily have any statutory force. Learned Counsel for the respondent authority was perfectly justified in submitting that the guidelines, which were subsequently published in the form of circulars, are more in the interest of the administration. It deals with the manner in which the transfers of the officers and employees in various ranks are required to be dealt with. It cannot be disputed that the transfer is an exigency of service. It is an inevitable accompaniment of the employees in service with the Government or some other organizations. Much was submitted referring to the prescribed tenure as reflected in the said guidelines. Learned Counsel for the respondent authority categorically submitted that the writ petitioner spent eight years out of his home zone. It is not in controversy that the petitioner was brought to home zone but there he could stay only for about four years. He was thereafter transferred to Burnpur, West Bengal. Learned Counsel for the respondent authority categorically submitted that the writ petitioner spent eight years out of his home zone. It is not in controversy that the petitioner was brought to home zone but there he could stay only for about four years. He was thereafter transferred to Burnpur, West Bengal. The petitioner did not raise any grievance at the time of the said transfer to Burnpur. According to learned Counsel for the respondent authority, since the writ petitioner was not given any hard posting, the authority concerned in the best interest of the administration thought it fit to shift him to Assam. It is true that transfers of officers and employees quite occasionally create functional disharmony. The family members consequently are compelled to face various difficulties. But the constraint of the authority cannot also be lost sight of. After all, running of administration is the first and foremost duty of those who are at the helm of it. The said authority is certainly expected to follow a uniform policy " as far as possible and practicable. No doubt, interest of the officers and the employees is always to be kept in mind and precisely for that reason, the guidelines are framed. But strict compliance with the said guidelines may not be always possible. But it cannot be disputed that there are instances where the authorities by their actions and orders fail to reflect impartiality. There are orders which clearly manifest nepotism and favouritism. 7. IN such view of the matter, the credibility of those who are in charge of running of the organization/department is quite often questioned in a court of law. It is, however, worth mentioning that it is neither possible nor desirable to follow any guideline in its strict sense. It is not arithmetic that two plus two always make four. Certain human factors as well as other circumstances are occasionally required to be kept in mind. Borrowing from the Socialist Leader of the 20th Century, V. I. Lenin, it can be said that equality amongst un-equals is inequality. Thus, two cases cannot be treated in an absolutely identical manner. There has to be some scope for discretion but such discretion, however, is required to be exercised in just, fair and reasonable manner. Borrowing from the Socialist Leader of the 20th Century, V. I. Lenin, it can be said that equality amongst un-equals is inequality. Thus, two cases cannot be treated in an absolutely identical manner. There has to be some scope for discretion but such discretion, however, is required to be exercised in just, fair and reasonable manner. When that is not done, such an order can very well be challenged in a court of law on the ground of its inherent impropriety. 8. IN the present case, it is not disputed that the writ petitioner during his entire tenure of service i. e. for about 14/15 years was never given a hard posting. In absence of any material indicating mala fide action on the part of the administration, this Court does not find any rational justification for any manner of interference with the impugned order of transfer. The said order cannot be said to be unfair or unjust; unreasonable or irrational. Accordingly, this Court does not find any reason for interference. The present case being A. S. T. No. 1137 of 2008 fails and be dismissed. 9. IT may, however, be mentioned that the writ petitioner after joining his transferred place will be at liberty to submit a representation ventilating therein all his difficulties and grievances. The respondent concerned in such event must consider the said representation in its proper perspective and take appropriate action or pass necessary order in accordance with the rules. Such entire process must be completed within a period of four months from the date of receipt of the representation. 10. ACTION to be so taken or order to be so passed must be duly communicated to the writ petitioner within a period of four weeks from the said date. There is no order as to costs.