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2009 DIGILAW 830 (GAU)

Pijush K. Purkayastha v. Union of India

2009-11-25

TINLIANTHANG VAIPHEI

body2009
JUDGMENT T. Vaiphei, J. 1. Aggrieved by the order dated 22.9.2009 issued by the Director General of Border Security Force (respondent No. 2) posting him as Officer on Special Duty (OSD) to the Frontier Headquarters, Shillong, the petitioner is filing this writ petition for appropriate relief. 2. The facts and circumstances prompting the petitioner to file this writ petition, as pleaded by him, may be briefly noticed at the outset. The petitioner is currently serving as Deputy Inspector-General (DIG) at the Sector Headquarters, Shillong. He is a permanent resident of Dhubri in the State of Assam, and the respondents have their office at Guwahati, which is close to his hometown. He is due to retire on 31.12.2009 on superannuation and, as such, he had verbally requested the respondent No. 2 on several occasions to post him near his home town in terms of the provisions under Rule 10 under the head of Terminal Posting of the Notification dated 15.3.2000 issued by the Ministry of Home Affairs. Apparently accepting his requests, the respondent No. 2 issued an order posting him at Tura, but the same was cancelled immediately whereafter he was posted back to his previous place of posting as ADIR (OPS) at North Bengal. After completing tenure of four years, he was posted as DIG at Sector Headquarters, BSF, Shillong on 2.6.2008. Though he has always been performing his duties with full diligence, sincerity and honesty, he was surprised to receive a message bearing dated 22.9.2009 on 23.9.2009 posting him as OSD at the Frontier Headquarters, Shillong without assigning any reason therein. According to the petitioner, his Headquarters is already having five posts of Deputy Inspectors General out of which one post is still vacant and he ought to have been accommodated against this vacant slot, more so, when the other transferred officers have not yet joined their respective posting places. In fact, the officer, who has been transferred to fill up the vacant post of DIG in terms of the impugned order, is junior to him. It is contended by the petitioner that the post of OSD is not an authorized post or a rank or a portfolio, but is an ex-cadre post and that an Officer is normally posted as OSD when special circumstances arises, and such post is treated as a post without a job. It is contended by the petitioner that the post of OSD is not an authorized post or a rank or a portfolio, but is an ex-cadre post and that an Officer is normally posted as OSD when special circumstances arises, and such post is treated as a post without a job. It is also contended by him that as he has only three months left for attaining the age of superannuation and as he has a good service record, he is entitled to be posted near his hometown. These are the sum and substance of the case of the petitioner. 3. In resisting the writ petition, the respondents in their affidavit-in-opposition do admit that the petitioner was transferred to and posted as OSD by the order dated 22.9.2009 but they assert that when he refused to hand over the charge to his reliever, he was relieved with immediate effect vide the order dated 28.9.2009. They, therefore, deny that he continues to hold the post of DIG, Sector Headquarters. It is asserted by the answering respondents that they are the best judge to assess the suitability or competence of the officers to hold a particular position or post, and he has no right to resist his transfer or re-allocation of duties in the best interest of the service on operational requirement; his conduct under the circumstances amounts to insubordination. It is pointed out by the answering respondents that he has not been transferred out of Shillong, but he continues to be placed at the Frontier Headquarters, Shillong and, as such, there is no question of causing any inconvenience or hardship to him. They flatly deny that he was transferred against an unauthorized post and claim that the creation of the post of OSD is resorted to assign certain special duly to a particular officer in public interest. They also deny that they are required to assign any reason for transferring a particular officer and submit that as per Rule 18(2) of the Border Security Force (Tenure of Posting and Deputation) Rules, 2000, the respondent No. 2 is empowered to order transfer of all personnel anywhere including turnover from/to static formations and on extreme compassionate grounds. They also deny that they are required to assign any reason for transferring a particular officer and submit that as per Rule 18(2) of the Border Security Force (Tenure of Posting and Deputation) Rules, 2000, the respondent No. 2 is empowered to order transfer of all personnel anywhere including turnover from/to static formations and on extreme compassionate grounds. It is also submitted by the answering respondents that as per Rule 19 of the amended BSF (Tenure of Posting and Deputation) Rules, 2002 notified on 4.7.2002, the respondent No. 2 is further empowered to extend or reduce the tenure of any member of the Force in certain terms, if he is satisfied that it is so required in the interest of the Force. The respondent No. 2 has already approved the posting of the petitioner keeping in view the interest of the Force, more particularly, the operational commitments. It is pointed out by them that it is the usual practice of the Government to post even a senior officer as OSD and, in fact, recently two officers of the rank of Inspector General were posted as Officer on Special Duty at Force Headquarters due to operational and administrative requirements. 4. It is the further case of the respondents that the petitioner has been posted out from the Sector Headquarters, Shillong based on the recommendation of the Inspector General of the concerned Frontier on Operational grounds. The operational performance of the petitioner was found to be extremely poor especially in handling sensitive matter such as adverse possession of land of India and Bangladesh which keeps on triggering problems between the two countries. As his further retention at the Sector Headquarters is likely to pose serious problems in handling crucial operational matters, his transfer was found to be essential in the national interest. It is also stated by the answering respondents that presently all the posts of DIGs in the Assam Meghalaya Frontier have been filled up by posting suitable officers, and no post is lying vacant. It is further pointed out that he was posted at Shillong, which is nearer to his hometown, Dhubri (Assam), at his own request and, as a matter of fact, he had submitted an application on 19.12.2007 for his posting at Shillong. It is further pointed out that he was posted at Shillong, which is nearer to his hometown, Dhubri (Assam), at his own request and, as a matter of fact, he had submitted an application on 19.12.2007 for his posting at Shillong. Taking into account the attendant facts and circumstances, he has not been disturbed from Shillong but has only been shifted out from the Sector Headquarters to Frontier Headquarters as both are situated in close proximity to Shillong. The petitioner will be assigned with duties on his joining a new place of posting. As per Rule 10 of BSF (Tenure of Posting and Deputation) Rules, 2000, members of the Force, having a good record of service and free from disciplinary/vigilance angle, may be given posting near their hometown, two years before attaining the age of superannuation subject to availability of vacant post in such place and of suitability for the job, as assessed by the competent authority. Accordingly, he was posted near his hometown with effect from 2.6.2008. He has been posted out from Shillong Headquarters on the recommendation of his supervisory officer, namely, Inspector General, Frontier Headquarters, BSF, Shillong keeping in mind his performance, but has been retained in the same location in view of his impending retirement on 31.12.2009 on superannuation despite his inept handling of sensitive operational matters on international borders, for which the Force under his command has incurred severe condemnation from the press and the public in general. The petitioner has been posted to Frontier Headquarters, BSF, Shillong as OSD under the command of Inspector General, who is a very senior officer in the hierarchy. The answering respondents, therefore, contend that his statement that he will be under an officer in the rank of DIG is misleading and travesty of truth and made with a mala fide intention to earn the sympathy of this Court. These are the case of the answering respondents. 5. I have extensively heard Mr. D. Mazumdar, the learned Counsel for the petitioner, and Mr. S.C. Shyam, the learned CGC appearing for the Union of India and others. I have also carefully gone through the pleadings of the parties as well as the record produced by the Union of India. These are the case of the answering respondents. 5. I have extensively heard Mr. D. Mazumdar, the learned Counsel for the petitioner, and Mr. S.C. Shyam, the learned CGC appearing for the Union of India and others. I have also carefully gone through the pleadings of the parties as well as the record produced by the Union of India. In a catena of decisions rendered by the Apex Court, for which no reference is necessary, it has been held that no government servant or employee of a public undertaking has any legal right to be posted at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer or is stated to be issued by an authority not competent to do so, the courts or tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the authorities. A different dimension is added when the transfer involves personnel belonging to the armed forces. Admittedly, the petitioner is Deputy Inspector in the BSF, which is a part of the armed forces. The scope of interference by the courts in regard to members of the armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made. This is the law laid down by a three-Judge Bench of the Apex Court in Major General J.K. Bansal v. Union of India and Ors. (2005) 7 SCC 227 . 6. The instant case is not one where the impugned transfer order is passed by an authority not competent to do so or is in contravention of statutory provisions. This is the law laid down by a three-Judge Bench of the Apex Court in Major General J.K. Bansal v. Union of India and Ors. (2005) 7 SCC 227 . 6. The instant case is not one where the impugned transfer order is passed by an authority not competent to do so or is in contravention of statutory provisions. However, a valiant effort is made by the learned Counsel for the petitioner to persuade this Court to hold that the transfer is mala fide. He submits that inference of mala fide looms large from the following facts and circumstances, namely, (i) the petitioner has been transferred from static formation to an unauthorized post of OSD without any reason or obtaining his consent; (ii) the fact that he will be assigned his duty only after he joins his new place of posting goes to demonstrate that the OSD duty is not a rank or post authorized under the Act and the rule made thereunder; (iii) at any rate, the allegations made against him that he lacks operational capabilities is an evidence that the impugned transfer order is punitive as well as colorable exercise of power; (iv) the order transferring him from the post of DIG to OSD has the effect of reducing his status and rank more so, when there is no declaration of equivalent status for both the posts and (v) there is nothing to show that the transfer was made in public interest. He, therefore, contends that the impugned transfer cannot be sustained in law and is liable to be quashed. In support of his contentions, he relies on the decisions of the Apex Court in Tejshree Ghag v. Prakash Parashuram Patil (2007) 6 SCC 220 and Vice-Chancellor, L.N. Mithila University v. Dayanand Jha (1986) 3 SCC 7 . Opposing the contentions of the learned Counsel for the petitioner, Mr. S.C. Shyam, the learned CGC, maintains that there is nothing to suggest that the transfer is mala fide and no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. According to him, the transfer ha& been effected in public interest and in the exigency of public service. According to him, the transfer ha& been effected in public interest and in the exigency of public service. He contends that the petitioner has been found to be incapable of discharging his duty in the desired manner and the respondent authorities were left with no choice but to give him a different posting but in the same area keeping in mind his impending retirement on superannuation and not to cause hardship and inconvenience. He also submits that there is no legal infirmity in his posting as OSD inasmuch as he is drawing the same scale of pay and enjoying an equivalent status of DIG, and such posting cannot be termed as punitive and reduction in rank to fall foul of the protection granted by Article 311 of the Constitution. Lastly, drawing my attention to the observations of the Apex Court in J.K. Bansal case (supra), he maintains that the scope of interference by this Court in regard to members of armed forces is far more limited and narrow. He, therefore, submits that the writ petition has no substance and is liable to be dismissed. 7. There is no dispute at the bar that the post of OSD against which the petitioner has been appointed on transfer carries the same scale of pay and that there is no change in the cadre of the petitioner by virtue of the impugned transfer. To resolve the issue raised by the petitioner, it will be illuminating to refer to the case of K. Gopaul v. Union of India AIR 1967 SC 1864 . That was a case where 'K' a confirmed Inspector-General of Registration and a head of department in Madras State was transferred to the post-of "Accommodation Controller" a post carrying the same scale of pay, as the former post was included in the IAS Cadre post. 'K' challenged the legality of the transfer on the ground that the transfer resulted in reduction of rank firstly because the latter post was not the post of a head of department and secondly because the post of I.G. was superior in rank to that of a Deputy Secretary and the latter was pot. 'K' challenged the legality of the transfer on the ground that the transfer resulted in reduction of rank firstly because the latter post was not the post of a head of department and secondly because the post of I.G. was superior in rank to that of a Deputy Secretary and the latter was pot. It was held: ...We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of the Head of the Department necessarily involves any reduction in rank. In fact, it is well-known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department, while persons holding comparatively junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certain powers. In the case of the appellant, it is to be noticed that, from the very initial stage, it was laid down that, on being transferred to the post of Accommodation Controller, he was still to continue to draw in the pay scale of Rs. 1,200-100/2-1,400 which was the scale in which he was drawing his pay while working in the post of I.G.R. The appellant was, thus, not sent to a post carrying a lower scale of pay.... 8. From the aforesaid paragraph, the inference irresistible and the conclusion inescapable that the transfer of the petitioner from the post of DIG to the post of OSD, which undoubtedly carries the same scale of pay, cannot be said to be a reduction in his rank. In High Court, Calcutta v. Amal Kumar AIR 1962 SC 1704 , the Apex Court had an occasion to consider the meaning of the term "reduction in rank" used in Article 311 of the Constitution. This is what the Apex Court said: ...The plaintiff sought to argue that "rank", in accordance with dictionary meaning, signifies "relative position or status or place", according to Oxford English Dictionary. The word rank can be and has been used in different senses in different contexts. The expression "rank" in Article 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of service to which he belongs. The word rank can be and has been used in different senses in different contexts. The expression "rank" in Article 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of service to which he belongs. Hence, in the context of the Judicial Service of West Bengal, "reduction in rank" would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsiff, the rank of a Subordinate Judge being higher than that of a Munsiff. But Subordinate Judges in the same cadre hold the same rank, though they have to be listed in order of seniority in the Civil List. Therefore, losing some places in the seniority list is not tantamount to reduction in rank. Hence, it must be held that, the provisions of Article 311(2) of the Constitution are not attracted to this case. 9. The paragraph extracted above is a complete answer to the contention raised by the learned Counsel for the petitioner that the status of the petitioner has been affected by virtue of his transfer from the post of DIG to the post of OSD. Furthermore, transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer is avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Otherwise, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. In the instant case, there is no pleading made by the petitioner to the effect that the person who has been posted in his place is not suitable for the post. Otherwise, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. In the instant case, there is no pleading made by the petitioner to the effect that the person who has been posted in his place is not suitable for the post. The record, on the contrary, shows that the impugned transfer was made on the recommendation of his superior officer, namely, the Inspector General of the concerned Frontier, who made serious allegations/against the petitioner that his operational performance in handling sensitive matter pertaining to adverse possession of land in India and Bangladesh, which keeps on triggering problems between the neighbouring countries, was found to be extremely poor and that his further retention in Sector Headquarters, Shillong was likely to cause serious problems in handling crucial operational matters. In Union of India v. Janardhan Debnath (2004) 4 SCC 245 , the question whether transfer on the ground that the employee concerned was "undesirable" as he had misbehaved, would vitiate the transfer order, came up for consideration before the Apex Court. In that case, the respondent employees of the Postal Services Department were transferred from Agartala Division to Meghalaya Division by an order dated 10.9.2002. After unsuccessfully approaching CAT against that order, they approached the High Court. The Union of India, the appellant therein, supported the impugned order on the grounds of public interest and exigencies of administration. It further stated that the respondents had misbehaved with a senior lady officer with a view to force her to withdraw the charge sheet against a particular employee. Giving details of the incident, the appellant stated that with a view to enforce discipline the respondents were transferred. However, the High Court held that transfer was impermissible in terms of Rule 37 of the Posts and Telegraphs Manual, Vol. IV and was in violation of FR 15 and that it was a measure of penalty and the seniority and the promotional prospects were likely to be affected. Allowing the appeal, the Apex Court held: (SCC, pp. 251-2, para 14) 14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. Allowing the appeal, the Apex Court held: (SCC, pp. 251-2, para 14) 14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. For the purpose of effecting a transfer, the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the primary satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the learned Counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs. 10. Again, the question whether transfer of an employee to a non-working post is liable to be interfered with was agitated before the Apex Court in State of U.P. v. Siya Ram (2004) 7 SCC 405 . That was a case where respondent No. 1, while functioning as an Executive Engineer (Mechanical), Irrigation Division 1, Government of U.P., was transferred from the Tubewell Division 1, Ghazipur to the Office of Joint Chief Engineer, Tubewell East, Faizabad. The said order having been quashed by the Division Bench of the Allahabad High Court, the State of U.P filed an appeal. The primary stand taken in the writ application was that the order of transfer was a measure of punishment. An enquiry in departmental proceedings had been initiated. Without affording him an opportunity of being heard, the transfer was done as a measure of punishment. The disciplinary action which was taken against respondent No. l pursuant to the enquiry conducted was referred to the Uttar Pradesh Public Service Commission for approval. An enquiry in departmental proceedings had been initiated. Without affording him an opportunity of being heard, the transfer was done as a measure of punishment. The disciplinary action which was taken against respondent No. l pursuant to the enquiry conducted was referred to the Uttar Pradesh Public Service Commission for approval. But it was not approved. The State-respondents in their affidavit-in-opposition took the stance that the transfer of respondent 1 was on administrative grounds and merely because he was transferred to a non-working post that did not in any way vitiate the order of transfer. Allowing the appeal, the Apex Court set aside the judgment of the High Court holding that there was not an iota of material to show the transfer was connected with the departmental proceedings and no mala fides could be attributed as the order was purely on administrative grounds and in public interest. That apart, the question whether transfer in a particular case is in public interest requires factual adjudication, and examination of that question by a High Court in exercise of its jurisdiction under Article 226 of the Constitution has been disapproved by the Apex Court in Janardhan Debnath case (supra). In my opinion, the decisions of the Apex Court referred to herein above rendered in the context of civilian employees are overwhelmingly against the various contentions raised on behalf of the petitioner. In the case at hand, we are dealing with transfer in the case of personnel belonging to the armed forces, namely, Border Security Force. No exceptional case is made out by the petitioner to warrant the interference of this Court in the impugned transfer. 11. The result of the foregoing discussion is that there is no merit in this writ petition, which is hereby dismissed. However, on the facts and in the circumstances of the case, I direct the parties to bear their respective costs. Petition dismissed.